The Food and Drug Administration (FDA) is classifying the medical washer and medical washer-disinfector intended for general medical purposes to clean and dry surgical instruments, decontaminate or disinfect anesthesia equipment, hollowware, and other medical devices into class II (special controls). FDA is also identifying the guidance document entitled “Class II Special Controls Guidance Document: Medical Washers and Medical Washer-Disinfectors” (the guidance) as the special control that, in addition to general controls, the agency believes will reasonably ensure the safety and effectiveness of the device. This action is being taken under the Federal Food, Drug, and Cosmetic Act (the act), as amended by the Medical Device Amendments of 1976 (the 1976 amendments), the Safe Medical Devices Act of 1990 (the SMDA), and the Food and Drug Administration Modernization Act of 1997 (the FDAMA).

The act (21 U.S.C. 301 et seq.), as amended by the 1976 amendments (Public Law 94-295), the SMDA (Public Law 101-629), and the FDAMA (Public Law 105-115), established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the act (21 U.S.C. 360c) established three categories (classes) of devices, depending on the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

Under section 513 of the act, devices that were in commercial distribution before May 28, 1976 (the date of enactment of the 1976 amendments), generally referred to as preamendments devices, are classified after FDA has: (1) Received a recommendation from a device classification panel (an FDA advisory committee); (2) published the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.

Devices that were not in commercial distribution prior to May 28, 1976, generally referred to as postamendments devices, are classified automatically by statute (section 513(f) of the act) into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval, unless and until: (1) The device is reclassified into class I or II; (2) FDA issues an order classifying the device into class I or II in accordance with new section 513(f)(2) of the act, as amended by the FDAMA; or (3) FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the act, to a predicate device that does not require premarket approval. The agency determines whether new devices are substantially equivalent to previously offered devices by means of premarket notification procedures in section 510(k) of the act (21 U.S.C. 360(k)) and 21 CFR part 807 of the regulations.

A preamendments device that has been classified into class III may be marketed, by means of premarket notification procedures, without submission of a premarket approval application (PMA) until FDA issues a final regulation under section 515(b) of the act (21 U.S.C. 360e(b)) requiring premarket approval. Consistent with the act and the regulations, FDA consulted with the General Hospital and Personal Use Devices Panel (the Panel), an FDA advisory committee, regarding the classification of this device.

II. Regulatory History of the Device

In the Federal Register of February 7, 2002 (67 FR 5750), FDA proposed to classify the medical washer and medical washer-disinfector into class II (special controls). This device is intended for general medical purposes to clean and dry surgical instruments, decontaminate or disinfect anesthesia equipment, hollowware, and other medical devices.

Interested persons were given until May 8, 2002 to comment on the proposed regulation.

FDA received a total of three comments from one health professional, a consumer group, and one consumer. All three comments agreed with the proposed rule. In addition, one comment suggested that FDA require manufacturers to include testing to monitor cleaning efficacy.

III. Summary of Final Rule

FDA believes that in order to reduce the potential for confusion, the identification terms “general use” washer and “general use washer-disinfector” as recommended by the Panel should be changed to “medical washer” and “medical washer-disinfector.” The new terms will distinguish these devices from “general purpose article” washers and washer-disinfectors that are exempt from section 510(k) of the act requirements. FDA also believes that decontamination and disinfection are distinct intended uses that require FDA to distinguish washers from washer-disinfectors in classification descriptions.

FDA concurred with the Panel that the medical washers and washer-disinfectors should be classified into class II because special controls, in addition to general controls, would provide reasonable assurance of the safety and effectiveness of the device, and there is sufficient information to establish special controls to provide such assurance. FDA identified the guidance entitled “Class II Special Controls Guidance Document: Medical Washers and Medical Washer-Disinfectors” as the special control for these devices. Following the effective date of this final classification rule, any firm submitting a section 510(k) of the act premarket notification for a medical washer or medical washer disinfector will need to address the issues covered in the special control guidance. However, the firm need only show that its device meets the recommendations of the guidance or in some other way provides equivalent assurance of safety and effectiveness.

As the Panel initially recommended, FDA believes that the medical washer is exempt from section 510(k) of the act requirements and that some medical washer-disinfectors can also be exempt from section 510(k) of the act requirements, depending on intended use. The medical washer-disinfector intended to clean and provide high level disinfection to medical devices should be subject to section 510(k) of the act requirements because the reusable devices subject to a high level disinfection process may pose a high risk of infection and other serious sequelae if the washer-disinfector is unsafe or ineffective. The medical washer-disinfector intended to clean and provide low or intermediate level disinfection can be exempt from 510(k) requirements because the reusable devices subject to low or intermediate disinfection pose a relatively lower risk of infection and other serious sequelae if the washer-disinfector is unsafe or ineffective.

In order to receive the guidance entitled “Class II Special Controls Guidance Document: Medical Washers and Medical Washer-Disinfectors” via your fax machine, call the CDRH Facts-on-Demand system at 800-899-0381 or 301-827-0111 from a touch-tone telephone. At the first voice prompt press 1 to enter the system. At the second voice prompt press 1 to order a document. Enter the document number (1252) followed by the pound sign (#). Follow the remaining voice prompts to complete your request.

Persons interested in obtaining a copy of the guidance may also do so using the Internet. CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes the civil money penalty guidance documents package, device safety alerts, Federal Register reprints, information on premarket submissions (including lists of approved applications and manufacturers' addresses), small manufacturers' assistance, information on video conferencing and electronic submissions, Mammography Matters, and other device-oriented information. The CDRH home page may be accessed at http://www.fda.gov/cdrh. The document entitled “Class II Special Controls Guidance Document: Medical Washer and Medical Washer-Disinfector” is available on the Internet at http://www.fda.gov/cdrh/ode/guidance/1252.pdf.

IV. Analysis of Comments and FDA's Response

FDA received three comments. All three comments agreed with the classification. One comment also suggested that FDA require manufacturers to include testing to monitor cleaning efficacy.

Currently, there is no standard for validating cleaning efficacy. Manufacturers can include in their manuals recommendations for routine monitoring of cleaning efficacy and frequency of testing. The guidance document does not prevent them from doing this. Once standardized test methods are available, FDA will review and recognize those standardized test methods as appropriate.

Therefore, under section 513 of the act, FDA is adopting the summary of reasons for the Panel's recommendation and the summary of data upon which the Panel's recommendation is based, in its entirety. FDA is also adopting the assessment of the risks to public health stated in the proposed rule published on February 7, 2002. Furthermore, FDA is issuing this final rule that classifies the generic type of device, medical washer and medical washer-disinfector into class II.

V. Environmental Impact

The agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

VI. Analysis of Impacts

FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4)). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety and other advantages, distributive impacts, and equity). The agency believes that this final rule is consistent with the regulatory philosophy and principles identified in the Executive order. In addition, the final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. The special controls guidance document does not impose any new burdens on these or future manufacturers. It merely assures that, in the future, devices of this generic type will be at least as safe and effective as the presently marketed devices. These devices are already subject to premarket notification and labeling requirements. The guidance document merely advises manufacturers on appropriate means of complying with these requirements. The agency therefore certifies that this final rule will not have a significant economic impact on a substantial number of small entities. In addition, this final rule will not impose costs of $100 million or more on either the private sector or state, local, and tribal governments in the aggregate, and therefore a summary statement or analysis under section 202(a) of the Unfunded Mandates Reform Act of 1995 is not required.

VII. Federalism

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the order and, consequently, a federalism summary impact statement is not required.

VIII. Paperwork Reduction Act of 1995

This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520) is not required.

The information collections addressed in the special control guidance document identified by this rule have been approved by OMB in accordance with the PRA under the regulations governing premarket notification submissions, 21 CFR part 807, subpart E, OMB control number 0910-0120.

IX. Reference

The following reference has been placed on display in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. This reference may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

1. Transcript of General Hospital and Personal Use Devices Panel of the Medical Devices Advisory Committee Meeting, September 14, 1998.

List of Subjects in 21 CFR Part 880

Medical devices.

Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 880 is amended as follows:PART 880—GENERAL HOSPITAL AND PERSONAL USE DEVICES1. The authority citation for 21 CFR part 880 continues to read as follows:Authority:

(a) Identification. A medical washer is a device that is intended for general medical purposes to clean and dry surgical instruments, anesthesia equipment, hollowware, and other medical devices.

(b) Classification. Class II (special controls). The special control for this device is the FDA guidance document entitled “Class II Special Controls Guidance Document: Medical Washers and Medical Washer-Disinfectors.” The device is exempt from the premarket notification procedures in subpart E of part 807 of this chapter subject to § 880.9.

(a) Identification. A medical washer-disinfector is a device that is intended for general medical purposes to clean, decontaminate, disinfect, and dry surgical instruments, anesthesia equipment, hollowware, and other medical devices.

(b) Classification. Class II (special controls). The special control for this device is the FDA guidance document entitled “Class II Special Controls Guidance Document: Medical Washers and Medical Washer-Disinfectors.”

(1) Medical washer-disinfectors that are intended to clean, high level disinfect, and dry surgical instruments, anesthesia equipment, hollowware, and other medical devices.

(2) Medical washer-disinfectors that are intended to clean, low or intermediate level disinfect, and dry surgical instruments, anesthesia equipment, hollowware, and other medical devices are exempt from the premarket notification procedures in subpart E of part 807 of this chapter subject to § 880.9.

The Pension Benefit Guaranty Corporation's regulations on Benefits Payable in Terminated Single-Employer Plans and Allocation of Assets in Single-Employer Plans prescribe interest assumptions for valuing and paying benefits under terminating single-employer plans. This final rule amends the regulations to adopt interest assumptions for plans with valuation dates in December 2002. Interest assumptions are also published on the PBGC's Web site (http://www.pbgc.gov).

The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.

Three sets of interest assumptions are prescribed: (1) A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to part 4022).

Accordingly, this amendment (1) adds to Appendix B to Part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during December 2002, (2) adds to Appendix B to part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during December 2002, and (3) adds to Appendix C to part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during December 2002.

For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 5.30 percent for the first 25 years following the valuation date and 4.25 percent thereafter. These interest assumptions represent an increase (from those in effect for November 2002) of 0.30 percent for the first 25 years following the valuation date and are otherwise unchanged.

The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 4.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent an increase (from those in effect for November 2002) of 0.25 percent for the period during which a benefit is in pay status and are otherwise unchanged.

For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).

The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect, as accurately as possible, current market conditions.

Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during December 2002, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows: PART 4022—BENEFITS PAYABLE IN TERMINATED SINGLE-EMPLOYER PLANS1. The authority citation for part 4022 continues to read as follows:Authority:

29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.

2. In appendix B to part 4022, Rate Set 110, as set forth below, is added to the table. (The introductory text of the table is omitted.)Appendix B to Part 4022—Lump Sum Interest Rates for PBGC Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate

(percent)

Deferred annuities (percent) i1i2i3n1n2* * * * * * * 110 12-1-02 1-1-03 4.00 4.00 4.00 4.00 7 8 3. In appendix C to part 4022, Rate Set 110, as set forth below, is added to the table. (The introductory text of the table is omitted.) Appendix C to Part 4022—Lump Sum Interest Rates for Private-Sector Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate

5. In appendix B to part 4044, a new entry, as set forth below, is added to the table. (The introductory text of the table is omitted.)Appendix B to Part 4044—Interest Rates Used To Value Benefits For valuation dates occurring in the month— The values of it are: itfor t = itfor t = itfor t = * * * * * * * December 2002.05301-25.0425>25N/AN/A Issued in Washington, DC, on this 8th day of November 2002. Joseph H. Grant, Deputy Executive Director and Chief Operating Officer, Pension Benefit Guaranty Corporation. [FR Doc. 02-29024 Filed 11-14-02; 8:45 am] BILLING CODE 7708-01-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 918 [LA-022-FOR] Louisiana Regulatory Program AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving an amendment to the Louisiana regulatory program (Louisiana program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Louisiana proposed revisions to its regulations concerning revegetation success standards for post-mining land uses of pastureland and wildlife habitat. Louisiana also proposed to add to its program a policy document that describes the criteria and procedures for determining reclamation phase III ground cover and tree and shrub stocking success for areas developed for wildlife habitat. Louisiana revised its program to be consistent with the corresponding Federal regulations.

I. Background on the Louisiana Program II. Submission of the Amendment III. OSM's Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the Louisiana Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Louisiana program on October 10, 1980. You can find background information on the Louisiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the October 10, 1980, Federal Register (45 FR 67340). You can also find later actions concerning the Louisiana program and program amendments at 30 CFR 918.15 and 918.16.

II. Submission of the Amendment

By letter dated October 2, 2001 (Administrative Record No. LA-367), Louisiana sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). Louisiana sent the amendment in response to our letters dated March 24, 1999, and August 16, 2000 (Administrative Record Nos. LA-365 and LA-365.01, respectively), that we sent to Louisiana in accordance with 30 CFR 732.17(c). Louisiana proposed revisions to the Louisiana Surface Mining Regulations found in the Louisiana Administrative Code, Title 43, Part XV (LAC) concerning revegetation success standards for post-mining land uses of pastureland and wildlife habitat. Louisiana also proposed to add to its program a policy document that describes the criteria and procedures for determining reclamation phase III ground cover and tree and shrub stocking success for areas developed for wildlife habitat.

We announced receipt of the proposed amendment in the November 2, 2001, Federal Register (66 FR 55609). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on December 3, 2001. We received comments from two Federal agencies. One of these agencies, the U. S. Fish and Wildlife Service (FWS), offered several comments on the proposed amendment. We forwarded these comments to Louisiana on January 25, 2002 (Administrative Record No. LA-367.06). By telephone, the State informed us that it would have to study the comments before responding to them (Administrative Record No. LA-367.08). We received Louisiana's response to the FWS comments in a letter dated June 11, 2002 (Administrative Record No. LA-367.05). Louisiana stated that it felt that its proposed revegetation success standards are consistent with SMCRA and no less effective than the Federal surface mining regulations. Therefore, we are proceeding with the final rule Federal Register document.

III. OSM's Findings

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment. Any revisions that we do not discuss below concern nonsubstantive wording or editorial changes or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.

A. Section 5423. Revegetation: Standards for Success

Louisiana added new paragraph B.1.e. stating that the criteria and procedures for determining ground cover and production success for pastureland are found at Section 5424. Louisiana also added new paragraph B.8.a. stating that the criteria and procedures for determining ground cover and stocking success for fish and wildlife habitat are found at Section 5425. There are no Federal counterpart regulations stating where to find in the regulations criteria and procedures for determining ground cover and production success for areas developed for use as pastureland. Also, there are no Federal counterpart regulations stating where to find in the regulations criteria and procedures for determining ground cover and stocking success for areas developed for fish and wildlife habitat. We are approving the addition of these two new paragraphs because they merely direct readers to where they can find specific criteria and procedures for determining ground cover and production success for pastureland or ground cover and stocking success for fish and wildlife habitat.

Louisiana proposed regulations that describe the criteria and procedures for determining ground cover and production success for areas being restored to pastureland. According to Section 5423, ground cover and production success on pastureland determinations must be based on the following criteria: (1) General revegetation requirements of the approved permit, (2) ground cover density, and (3) production. Also, the permittee is responsible for determining and measuring ground cover and production and for submitting this data to the Commissioner of Conservation (Commissioner) for evaluation.

The Federal regulation at 30 CFR 816.116(b) provides that the standards for revegetation success must be applied in accordance with the approved post-mining land use. It also provides that the ground cover and vegetation production parameters must be measured and compared to an appropriate revegetation standard in order to determine if the post-mining land use area has been successfully revegetated. We find that Louisiana's proposed regulation concerning the requirement to measure post-mining vegetation cover and production for the land use of pasture is no less effective than the Federal regulation at 30 CFR 816.116(b). Therefore, we are approving the proposed Louisiana regulation.

2. Section 5424.B. Success Standards and Measurement Frequency

a. Ground Cover and Forage Production. In paragraphs B.1. and B.2., Louisiana proposed regulations for ground cover and forage production, respectively. In paragraph B.1., Louisiana sets forth the criteria and procedures for determining ground cover and production success on pastureland. The criteria include an acceptable ground cover that is at least 90 percent of the approved success standard at a 90-percent confidence interval. The success standard is 90 percent. The criteria also include how to measure the ground cover; what types of species mixtures are required; sampling techniques for measuring success; when and how often to sample; and the length of the responsibility period. In paragraph B.2., Louisiana sets forth the criteria and procedures for determining forage production success on pastureland. The criteria include the success standard for hay production; when and how often to sample; and the length of the responsibility period.

The Federal regulation at 30 CFR 816.116(a)(2) provides the requirements for establishing revegetation success standards for ground cover and forage production for pastureland and the sampling techniques for measuring success. The Federal regulation at 30 CFR 816.116(c)(2) provides the length of the responsibility period and the time frame for sampling. We find that Louisiana's proposed regulations meet the requirements of the Federal regulations at 30 CFR 816.116(a)(2) and (c)(2) and are no less effective. Therefore, we are approving them.

b. Reference Area Requirements. In paragraphs B.3., Louisiana proposed regulations for reference area requirements. Louisiana proposed that reference areas must be representative of soils, slope, aspect, and vegetation in the pre-mined permit area. However, in cases where differences exist because of mixing of several soil series on the reclaimed area or unavailability of a reference area, yields must be adjusted. Reference area pastureland must also be under the same management as pastureland in the reclaimed area and must consist of a single plot (whole plot) at least four acres in size. Forage yields for the reference plot must be at a level that is reasonably comparable to the parish average for a given crop. Reference areas may be located on undisturbed acreage within permitted areas. When release areas and reference plots fall on different soil series, adjustments must be made to compensate for the productivity difference.

The Federal regulation at 30 CFR 816.116(a)(2) requires standards for success to include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover, production, or stocking. At 30 CFR 816.116(b), the Federal regulation requires that standards for success must be applied in accordance with the approved post-mining land use. Also, for areas developed for use as pastureland, the ground cover and production of living plants on the revegetated area must be at least equal to that of a reference area or such other success standards approved by the regulatory authority.

Louisiana proposed regulations that provided details for using reference areas as a standard for comparison with areas reclaimed to pastureland. The use of reference areas is consistent with standard scientific studies that use reference areas for studying vegetation. We find that Louisiana's proposed regulations concerning the use of these reference areas are not inconsistent with and are no less effective than the Federal regulations. Therefore, we are approving them.

3. Section 5424.C. Sampling Procedures

a. Random Sampling and Sampling Techniques for Ground Cover. In paragraphs C.1. and C.2.a., Louisiana proposed regulations for random sampling procedures and ground cover sampling techniques to assure that the samples truly represent the vegetative characteristics of the whole release or reference area. The regulations require permittees to use methods that will provide the following: (1) A random selection of sampling sites, (2) a sampling technique unaffected by the sampler's preference, and (3) sufficient samples to represent the true mean of the vegetation characteristics. The regulations instruct the permittees on how to select sampling points. They also require permittees to notify regulatory personnel ten days before conducting sampling or other harvesting operations to allow them an opportunity to monitor the sampling procedures. In addition, the regulations list the three approved statistically valid sampling techniques for measuring ground cover on pastureland and provide instructions for using them. The approved sampling techniques are pin method, point frame method, and line intercept method.

The Federal regulation at 30 CFR 816.116(a)(1) requires a regulatory authority to select and include in its approved regulatory program standards for vegetation success and statistically valid sampling techniques for measuring vegetation success. Louisiana proposed regulations requiring a random sampling technique to ensure that sample selection used for measuring success is not biased and will result in a statistically valid sample of adequate size. Also, Louisiana proposed regulations that allow the use of three separate statistically valid sampling methods that can be used to measure ground cover on pastureland. The proposed regulations are not inconsistent with and are no less effective than the Federal regulations and we are approving them.

b. Sampling Techniques for Productivity. In paragraph C.2.b., Louisiana proposed regulations for measuring vegetation productivity on pastureland. The proposed regulations set forth procedures for controlling two components (time of harvest and moisture content) that may potentially influence production yield. The proposed regulations also set forth the following two statistically valid sampling methods that can be used to evaluate production: (1) Sampling frames for harvesting plots, or (2) whole field or whole area harvesting.

The Federal regulation at 30 CFR 816.116(a)(1) requires a regulatory authority to select and include in its approved regulatory program standards for success and statistically valid sampling techniques for measuring success. Louisiana proposed procedures for controlling for two components that may influence vegetation production and set forth two statistically valid sampling methods that can be used to evaluate production. Therefore, we find that Louisiana's proposed regulations are not inconsistent with and are no less effective than the Federal regulations.

c. Sample Adequacy. In paragraph C.3., Louisiana proposed regulations for sampling adequacy. The proposed regulations set forth the procedure and formula to use for determining the actual number of samples needed to measure ground cover and productivity. The regulation requires the collection of data using a multi-staged sampling procedure. The proposed formula is a standard scientific formula for determining sample adequacy in order to ensure that vegetation sampling is statistically valid.

The Federal regulation at 30 CFR 816.116(a)(1) requires a regulatory authority to select and include in its approved regulatory program standards for success and statistically valid sampling techniques for measuring success. Louisiana's proposed regulations contain a procedure and a standard scientific formula to use for determining sample adequacy and to ensure that vegetation sampling is statistically valid. Therefore, we find that Louisiana's proposed regulations are not inconsistent with and are no less effective than the Federal regulations.

4. Section 5424.D. Data Submission and Analysis

Louisiana proposed the following regulations: (1) When to submit data to the Commissioner for review, (2) what is successful vegetation ground cover and production for the release area, (3) what to do when data indicates that average ground cover and average forage production for the release area is insufficient, and (4) making adjustments to forage production yields to account for moisture content before making statistical comparisons.

The Federal regulation at 30 CFR 816.116(a)(1) requires a regulatory authority to select and include in its approved regulatory program standards for success and statistically valid sampling techniques for measuring success. Louisiana is adopting requirements for data submission and analysis in order to ensure that vegetation sampling will be statistically valid. Therefore, we find that Louisiana's proposed regulations are not inconsistent with and are no less effective than the Federal regulations.

5. Section 5424.E. Maps

Louisiana proposed regulations requiring permittees to submit maps with their requests for reclamation phase III bond release. The maps must show the location of the proposed release area, the location of the reference plots, and all permit boundaries. When permittees submit data from a previously approved reclamation plan, maps must accompany the data. The maps must show the location of reference plots and each sampling point, the area covered by the sampling, and all permit boundaries.

The Federal regulation at 30 CFR 816.116(a)(1) requires a regulatory authority to select and include in its approved regulatory program standards for success and statistically valid sampling techniques for measuring success. Louisiana is adopting requirements for submission of maps as part of the bond release application in order to ensure that vegetation sampling will be statistically valid. Therefore, we find that Louisiana's proposed regulations are not inconsistent with and are no less effective than the Federal regulations.

6. Section 5424.F. Mitigation Plan

Louisiana proposed a set of criteria for developing a new phase III release plan in the event that the operator cannot demonstrate successful forage productivity and ground cover on the release area after the full five years of the phase III responsibility period.

The Federal regulations at 30 CFR 816.116(c)(1) and (c)(2) require that “the period of extended responsibility for successful revegetation shall begin after the last year of augmented seeding, fertilizing, irrigation, or other work * * *.” In areas where the annual average precipitation is more than 26.0 inches, the period of responsibility must continue at least five full years. Vegetative ground cover and production for pasture land must also equal or exceed the approved success standard during the growing season of any two years of the responsibility period, except the first year. Louisiana is adopting requirements for the development of a mitigation plan in the event that the operator is not able to demonstrate revegetation success during the phase III responsibility period. The proposed regulations are not inconsistent with and are no less effective than the Federal regulations. Therefore, we are approving them.

Louisiana proposed regulations that describe the criteria and procedures for determining ground cover and stocking success for areas being developed for wildlife habitat. According to Section 5423, ground cover and stocking success on wildlife habitat determinations must be based on the following criteria: (1) General revegetation requirements of the approved permit, (2) ground cover density, and (3) tree or shrub stocking and survival. Also, the permittee is responsible for determining and measuring ground cover and production and for submitting this data to the Commissioner for evaluation.

The Federal regulation at 30 CFR 816.116(b) provides that the standards for revegetation success must be applied in accordance with the approved post-mining land use. Also, for areas developed for wildlife habitat, the success of vegetation must be determined on the basis of tree and shrub stocking and vegetative ground cover. We find that Louisiana's proposed regulation concerning the requirement to measure post-mining vegetation cover and stocking for the land use of wildlife habitat is no less effective than the Federal regulation at 30 CFR 816.116(b). Therefore, we are approving the proposed Louisiana regulation.

In paragraphs B.1. and B.2., Louisiana proposed regulations for ground cover and tree and shrub stocking rate, respectively. In paragraph B.1., Louisiana sets forth the criteria and procedures for determining ground cover on wildlife habitat. The criteria include a ground cover of at least 70 percent density with a 90-percent statistical confidence interval for the last year of the 5-year responsibility period. The criteria also include how to measure the ground cover and what types of species mixture are required.

In paragraph B.2., Louisiana sets forth the criteria and procedures for determining tree and shrub stocking success on wildlife habitat. The criteria require that the State consult with and receive approval from the Louisiana Department of Wildlife and Fisheries, on a permit-specific basis, when determining the stocking rate for trees and shrubs. Also, the trees and shrubs that will be used in determining the success of stocking and the adequacy of the plant arrangement must have utility for the approved post-mining land use. When these two aspects of the criteria are met and acceptable ground cover is achieved, the 5-year responsibility period begins. The success standard for tree and shrub stocking rate is equal to or greater than 90 percent of the stocking rate approved in the permit at a 90-percent statistical confidence interval. The criteria for the stocking rate also provides the following: (1) When and how often to sample, (2) what physical condition the trees and shrubs must be in to be counted, and (3) what percent of the trees and shrubs used to determine success must be in place and for how long.

The Federal regulation at 30 CFR 816.116(a)(2) provides that ground cover and stocking is considered equal to the approved success standard when they are not less than 90 percent of the success standard at a 90-percent statistical confidence interval. The Federal regulation at 30 CFR 816.116(b) requires that standards for success must be applied in accordance with the approved post-mining land use and, at a minimum, the success of vegetation must be determined on the basis of tree and shrub stocking and vegetative ground cover. The regulatory authority must specify the minimum stocking and planting arrangements on the basis of local and regional conditions. However, the regulatory authority must first consult with and receive approval from the State agencies responsible for the administration of forestry and wildlife programs. Consultation and approval may occur on either a program-wide or a permit-specific basis. Trees and shrubs to be used in determining the success of stocking and the adequacy of the plant arrangement must have utility for the approved post-mining land use. Trees and shrubs counted in determining such success must be healthy and have been in place for not less than 2 growing seasons. At the time of bond release, at least 80 percent of the trees and shrubs used to determine such success must have been in place for 60 percent of the applicable minimum period of responsibility. The Federal regulation at 30 CFR 816.116(c)(2) requires the period of extended responsibility for successful revegetation to begin after the last year of augmented seeding, fertilizing, irrigation, or other work. In areas that receive more than 26.0 inches of annual average precipitation, the period of responsibility must continue for not less than 5 years. Areas approved for wildlife habitat must equal or exceed the applicable success standard during the growing season of the last year of the responsibility period.

In its amendment, Louisiana proposed the requirement for revegetation success standards, measurement techniques, local wildlife agency consultation and approval, and liability period requirements for wildlife habitat. We find that the State's proposed revisions are not inconsistent with and are no less effective than the Federal regulations. Therefore, we are approving them.

3. Section 5425.C. Sampling Procedures

a. Random Sampling and Sampling Technique for Ground Cover. In paragraphs C.1. and C.2.a., Louisiana proposed regulations for random sampling procedures and ground cover sampling techniques, respectively, to assure that the samples truly represent the vegetative characteristics of the whole release or reference area. The regulations require permittees to use methods that will provide the following: (1) A random selection of sampling sites, (2) a sampling technique unaffected by the sampler's preference, and (3) sufficient samples to represent the true mean of the vegetation characteristics. The regulations instruct the permittees on how to select sampling points. They also require permittees to notify regulatory personnel ten days before conducting sampling or other harvesting operations to allow them an opportunity to monitor the sampling procedures. In addition, the regulations list the three approved statistically valid sampling techniques for measuring ground cover on wildlife habitat and provide instructions for using them. The approved sampling techniques are pin method, point frame method, and line intercept method.

The Federal regulation at 30 CFR 816.116(a)(1) requires a regulatory authority to select and include in its approved regulatory program, standards for vegetation success and statistically valid sampling techniques for measuring vegetation success. Louisiana proposed regulations requiring a random sampling technique to ensure that sample selection used for measuring success is not biased and will result in a statistically valid sample of adequate size. Also, Louisiana proposed regulations that allow the use of three separate statistically valid sampling methods that can be used to measure ground cover on wildlife habitat. The proposed regulations are not inconsistent with and are no less effective than the Federal regulations and we are approving them.

b. Sampling Technique for Sampling Circles. In paragraph C.2.b., Louisiana proposed instructions on how to count trees and shrubs using sampling circles. Louisiana also provided criteria on which trees and shrubs to count. The tree or shrub to be counted must be healthy and must have been in place for at least two years. At the time of liability release, 80 percent of the trees and shrubs must have been in place for three years.

The Federal regulation at 30 CFR 816.116(a)(1) requires the regulatory authority to select the standards for success and the statistically valid sampling techniques for measuring success. The selected standards and sampling techniques must be included in the regulatory authority's approved regulatory program. Louisiana proposed the use of sampling circles as a statistically valid sampling method for measuring tree or shrub stocking on the wildlife habitat. The proposed regulation is not inconsistent with and is no less effective than the Federal regulation, therefore, we are approving it.

c. Sample Adequacy. In paragraph C.3., Louisiana proposed regulations for sampling adequacy. The proposed regulations set forth the procedure and formula to use for determining the actual number of samples needed to measure ground cover and productivity. The regulation requires the collection of data using a multi-staged sampling procedure. The proposed formula is a standard scientific formula for determining sample adequacy in order to ensure that vegetation sampling is statistically valid.

The Federal regulation at 30 CFR 816.116(a)(1) requires a regulatory authority to select and include in its approved regulatory program standards for success and statistically valid sampling techniques for measuring success. Louisiana's proposed regulations contain a procedure and a standard scientific formula to use for determining sample adequacy and to ensure that vegetation sampling is statistically valid. Therefore, we find that Louisiana's proposed regulations are not inconsistent with and are no less effective than the Federal regulations.

4. Section 5425.D. Data Submission and Analysis

Louisiana proposed the following regulations: (1) When to submit data to the Commissioner for review, (2) what is successful vegetation ground cover and stocking for the release area, and (3) what to do when data indicates that average ground cover and average tree and shrub stocking density for the release area is insufficient.

The Federal regulation at 30 CFR 816.116(a)(1) requires a regulatory authority to select and include in its approved regulatory program standards for success and statistically valid sampling techniques for measuring success. Louisiana proposed to adopt requirements for data submission and analysis in order to ensure that vegetation sampling will be statistically valid. Therefore, we find that Louisiana's proposed regulations are not inconsistent with and are no less effective than the Federal regulations.

5. Section 5425.E. Maps

Louisiana proposed regulations requiring permittees to submit maps with their requests for reclamation phase III bond release. The maps must show the location of the proposed release area, the location of the reference plots, and all permit boundaries. When permittees submit data from a previously approved reclamation plan, maps must accompany the data. The maps must show the location of each transect and sampling circle location, the area covered by the sampling, and all permit boundaries.

The Federal regulation at 30 CFR 816.116(a)(1) requires a regulatory authority to select and include in its approved regulatory program standards for success and statistically valid sampling techniques for measuring success. Louisiana is adopting requirements for submission of maps as part of the bond release application in order to ensure that vegetation sampling will be statistically valid. Therefore, we find that Louisiana's proposed regulations are not inconsistent with and are no less effective than the Federal regulations.

6. Section 5425.F. Mitigation Plan

Louisiana proposed a set of criteria for developing a new phase III release plan in the event that the operator cannot demonstrate successful vegetation ground cover and tree and shrub stocking on the release area after the full five years of the phase III responsibility period.

The Federal regulations at 30 CFR 816.116(c)(1) and (c)(2) require that “the period of extended responsibility for successful revegetation shall begin after the last year of augmented seeding, fertilizing, irrigation, or other work * * *.” In areas where the annual average precipitation is more than 26.0 inches, the period of responsibility must continue for at least five full years. Vegetative ground cover for wildlife habitat must also equal or exceed the approved success standard during the growing season of the last year of the responsibility period. Louisiana is adopting requirements for the development of a mitigation plan in the event that the operator is not able to demonstrate revegetation success during the phase III responsibility period. The proposed regulations are not inconsistent with and are no less effective than the Federal regulations. Therefore, we are approving them.

Louisiana submitted revegetation success guidelines in a policy document that describe the standards and procedures for determining revegetation success on wildlife habitat. The Federal regulations at 30 CFR 816.116(a)(1) require that each regulatory authority select revegetation success standards and statistically valid sampling techniques for measuring revegetation success and include them in its approved regulatory program. Louisiana developed its revegetation success guidelines for wildlife habitat to satisfy this requirement. The guidelines for wildlife habitat include revegetation success standards and statistically valid sampling techniques for measuring revegetation success of reclaimed wildlife habitat in accordance with Louisiana's counterpart to 30 CFR 816.116. Louisiana's standards, criteria, and parameters for revegetation success on wildlife habitat reflect the extent of vegetative cover, species composition, and soil stabilization required in the Federal regulations at 30 CFR 816.111. As required by the Federal regulations at 30 CFR 816.116(a)(2) and (b), Louisiana's revegetation success standards include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover and trees and shrubs stocking and production suitable to the approved postmining land use of wildlife habitat. Louisiana's guidelines specify the procedures and techniques to be used for sampling, measuring, and analyzing vegetation parameters. Ground cover, production, and stocking suitable to the approved postmining land use of wildlife habitat is considered equal to the approved success standard when they are not less than 90 percent of the success standard. Sampling techniques for measuring success use a 90-percent statistical confidence interval. We find that use of these procedures and techniques will ensure consistent, objective collection of vegetation data.

Appendices are included in the policy document. Appendix A—Selection of Random Sampling Sites includes procedures for selecting random sampling points, a set of random numbers, and an example of how to perform a random sample locations grid overlay. Appendix B—Data Form for Measuring Ground Cover Using a Pin Method and Appendix C—Example Data Form for Sampling Circles are data forms used for recording data and calculating the results from performing ground cover measurements and tree and shrub stocking measurements, respectively. Appendix D—T-Table, provides the t-values that are used for the sample adequacy calculations. Appendix E—Example Use of Sample Adequacy Formula for Ground Cover Measurements and Appendix F—Example Use of Sample Adequacy Formula for Tree and Shrub Counts give examples of how to determine sample adequacy for ground cover and tree and shrub counts, respectively. Appendix G—Statistical Analysis on Ground Cover Measurements and Appendix H—Statistical Analysis on Tree and Shrub Stocking Measurements describe how to perform statistical analyses on the ground cover and tree and shrub stocking data, respectively, to determine if there is a statistically significant difference between the data and the success standards if the data do not meet the success standards. Appendix I—Acceptable Plant Species for Revegetation of Wildlife Habitat Land Use lists plant species that are acceptable for use on land reclaimed for wildlife habitat. Appendix J—References provides a list of reference materials. Appendix K—Measuring Ground Cover Using a Pin Method is the last appendix in the policy document. This appendix describes how to perform ground cover measurements using a metal pin or a cross-hair sighting device.

The Federal regulation at 30 CFR 816.116(a)(1) requires a regulatory authority to select and include in its approved regulatory program standards for success and statistically valid sampling techniques for measuring success. Louisiana proposed to adopt a detailed policy illustrating the methods permittees may use to measure revegetation success for wildlife habitat. The policy document is not inconsistent with and is no less effective than the Federal regulations. Therefore, we are approving it.

IV. Summary and Disposition of Comments Public Comments

We asked for public comments on the amendment, but did not receive any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Louisiana program (Administrative Record No. LA-367.04). We received comments from two Federal agencies, the FWS and the U.S. Army Corps of Engineers (Administrative Record Nos. LA-367.02 and LA-367.03, respectively).

All of the FWS comments pertained to wildlife habitat. The FWS stated that it is pleased that Louisiana is developing post-mining reclamation and revegetation success standards for wildlife habitat. The agency also made several recommendations and suggestions concerning the following topics: (1) Control of noxious plants on reclaimed sites, (2) the time frame for when to begin stocking of trees and shrubs, (3) unacceptable vegetation not approved in the permit, and (4) scientific and commons names of acceptable plant species for revegetation of wildlife habitat. In a specific comment regarding the time frame for when to begin stocking of trees and shrubs, the FWS believed that Louisiana's proposed regulations at Section 5425.B. implied that it would take five years to determine acceptable ground cover and that woody vegetation could not be planted until after this 5-year period. The FWS's concern was that because it takes many years for tree species to reach maturity it believed that an effort should be made to plant woody vegetation as soon as possible. Louisiana's proposed regulations at Section 5425.B. do not require delaying the planting of trees and shrubs until after the determination of successful ground cover is made. Therefore, woody vegetation can be planted before this determination is made thereby resolving any concerns the FWS may have regarding this matter. On January 25, 2002 (Administrative Record No. LA-367.06), we forwarded the FWS's comments to Louisiana. By telephone, the State informed us that it would have to study the comments before responding to them (Administrative Record No. LA-367.08). In a letter dated June 11, 2002 (Administrative Record No. LA-367.05), we received Louisiana's response to the FWS comments. Louisiana stated that it felt that its proposed revegetation success standards are consistent with SMCRA and no less effective than the Federal surface mining regulations. As stated in III. OSM's Findings, we find that Louisiana's proposed amendment is no less effective than the Federal regulations. Therefore, we are approving it.

The U.S. Army Corps of Engineers stated in a letter we received on November 19, 2001, that it found Louisiana's proposed amendment satisfactory (Administrative Record No. LA-367.03).

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from the EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Louisiana proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask the EPA to concur on the amendment.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. LA-367.04). The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On October 16, 2001, we requested comments on Louisiana's amendment (Administrative Record No. LA-367.04), but neither responded to our request.

V. OSM's Decision

Based on the above findings, we approve the amendment as submitted by Louisiana on October 2, 2001, with the provision that they be fully promulgated in identical form to the regulations submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 918, which codify decisions concerning the Louisiana program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

Executive Order 13132—Federalism

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

The Coast Guard is removing the existing drawbridge operation regulation for the draw of the Portage bascule bridge across Portage Bayou, mile 2.0, at Pass Christian, Mississippi. The existing bridge has been removed from service and a replacement bridge will be constructed on the same alignment. Since the bridge is being removed, the regulation controlling the opening and closing of the bridge is no longer necessary.

DATES:

This rule is effective November 15, 2002.

ADDRESSES:

Documents referred to in this rule are available for inspection or copying at Eighth Coast Guard District, Bridge Administration Branch, 501 Magazine Street, New Orleans, Louisiana 70130-3396, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is (504) 589-2965. The Commander, Eighth Coast Guard District, Bridge Administration Branch maintains the public docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT:

Mr. David Frank, Bridge Administration Branch, at (504) 589-2965.

SUPPLEMENTARY INFORMATION:Good Cause for Not Publishing an NPRM

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds good cause exists for not publishing an NPRM. Public comment is not necessary since the bridge that the regulation governed is out of service and is being completely removed. The bridge no longer affects navigation through the area.

Good Cause for Making Rule Effective in Less Than 30 Days

Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause exists for making this rule effective less than 30 days after publication in the Federal Register. There is no need to delay the implementation of this rule because the bridge it governs is already out of service and is being removed.

Background and Purpose

The existing bascule bridge across Portage Bayou, mile 2.0, which had previously serviced the area is in the process of being removed and no longer affects navigation. The regulation governing the operation of the pontoon bridge is found in 33 CFR 117.684. The purpose of this rule is to remove 33 CFR 117.684 from the Code of Federal Regulations since it governs a bridge that is no longer in service and is being removed.

Regulatory Evaluation

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT)(44 FR 11040, February 26, l979).

This rule removes the special regulation for a bridge that is already out of service and is being removed.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will have no impact on any small entities because the regulation being removed applies to a bridge that has already been taken out of service and is being removed.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This final rule only involves removal of the drawbridge operation regulation for a drawbridge that has been removed from service. It will not have any impact on the environment. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 117

Bridges.

Regulations For the reasons set out in the preamble, the Coast Guard is amending Part 117 of Title 33, Code of Federal Regulations as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for Part 117 continues to read as follows: Authority:

The Coast Guard is removing the existing drawbridge operation regulation for the draw of the Lorraine-Cowan Road Bridge across the Industrial Seaway Canal, mile 11.3, at Gulfport, Mississippi. A replacement bridge has been constructed and the existing bridge has been removed from service. Since the bridge is being removed, the regulation controlling the opening and closing of the bridge is no longer necessary.

DATES:

This rule is effective November 15, 2002.

ADDRESSES:

Documents referred to in this rule are available for inspection or copying at Eighth Coast Guard District, Bridge Administration Branch, 501 Magazine Street, New Orleans, Louisiana 70130-3396, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is (504) 589-2965. The Commander, Eighth Coast Guard District, Bridge Administration Branch maintains the public docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT:

Mr. David Frank, Bridge Administration Branch, at (504) 589-2965.

SUPPLEMENTARY INFORMATION:Good Cause for Not Publishing an NPRM

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds good cause exists for not publishing an NPRM. Public comment is not necessary since the bridge that the regulation governed is out of service and is being completely removed. The bridge no longer affects navigation through the area.

Good Cause for Making Rule Effective in Less Than 30 Days

Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause exists for making this rule effective less than 30 days after publication in the Federal Register. There is no need to delay the implementation of this rule because the bridge it governs is already out of service and is being removed.

Background and Purpose

A new SR 605 bascule bridge across the Industrial Seaway Canal, mile 11.3, at Gulfport, was opened to traffic in October of 2002. The existing bascule bridge which had previously serviced the area is in the process of being removed and no longer affects navigation. The regulation governing the operation of the pontoon bridge is found in 33 CFR 117.680. The purpose of this rule is to remove 33 CFR 117.680 from the Code of Federal Regulations since it governs a bridge that is no longer in service and is being removed.

Regulatory Evaluation

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, l979).

This rule removes the special regulation for a bridge that is already out of service and is being removed.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will have no impact on any small entities because the regulation being removed applies to a bridge that has already been taken out of service and is being removed.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This final rule only involves removal of the drawbridge operation regulation for a drawbridge that has been removed from service. It will not have any impact on the environment. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 117

Bridges.

Regulations For the reasons set out in the preamble, the Coast Guard is amending Part 117 of Title 33, Code of Federal Regulations as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for Part 117 continues to read as follows: Authority:

The Coast Guard is extending the effective period of a regulated navigation area (RNA) and certain safety and security zones published January 4, 2002. This change will extend the effective period of the temporary final rule through March 15, 2003, allowing adequate time for informal rulemaking to develop a permanent rule. This rule will continue to regulate the conditions under which certain vessels may enter, transit or operate within the regulated navigation area and will exclude all vessels from operating within 700 yards of the Millstone Nuclear Power Plant or 100 yards of anchored Coast Guard vessels.

DATES:

The amendments of §§ 165.T01-153 and 165.T01-154 in this rule are effective November 15, 2002. Sections 165.T01-153 and 165.T01-154, added at 67 FR 519 and 520, January 4, 2002, effective December 10, 2001 until June 15, 2002, and extended at 67 FR 40861, June 14, 2002 through November 15, 2002, as amended in this rule, are extended in effect through March 15, 2003.

On January 4, 2002, we published a temporary final rule (TFR) entitled “Regulated Navigation Areas, Safety And Security Zones: Long Island Sound Marine Inspection Zone and Captain of the Port Zone” in the Federal Register (67 FR 517). The effective period for that rule was from December 10, 2001 until June 15, 2002 and it was then extended through November 15, 2002. (67 FR 40859, June 14, 2002).

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The original TFR was urgently required to prevent terrorist strikes within and adjacent to waters within the Long Island Sound Marine Inspection Zone and Captain of the Port Zone. It was anticipated that we would assess the security environment at the end of the effective period to determine whether continuing security precautions were required and, if so, propose regulations responsive to existing conditions. We have determined that the need for continued security regulations exists. The Coast Guard will utilize the extended effective period of this TFR to engage in notice and comment rulemaking to develop permanent regulations tailored to the present and foreseeable security environment within the Ports of Long Island Sound.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. The measures contemplated by the rule were intended to prevent future terrorist attacks. The delay inherent in the NPRM process for developing a permanent rule is contrary to the public interest insofar as it may render individuals, vessels and facilities within and adjacent to the Long Island Sound Marine Inspection Zone and Captain of the Port Zone vulnerable to subversive activity, sabotage or terrorist attack. The Coast Guard will be publishing a NPRM to establish permanent safety and security zones that are temporarily effective under this rule. This revision preserves the status quo within the Port while permanent rules are developed. The present TFR has not been burdensome on the maritime public. The Coast Guard has not received written comments or suggestion to modify the scope of the existing TFR.

Background and Purpose

On September 11, 2001, two commercial aircraft were hijacked from Logan Airport in Boston, MA and flown into the World Trade Center in New York, NY inflicting catastrophic human casualties and property damage. A similar attack was conducted on the Pentagon with a plane launched from Newark, NJ on the same day. National security and intelligence officials warn that future terrorist attacks against civilian targets may be anticipated. The Coast Guard established RNA's and safety and security zones within defined areas of water as part of a comprehensive, port security regime designed to safeguard human life, vessels and waterfront facilities from sabotage or terrorist acts. As mentioned in the original TFR, these regulations were designed to provide the Captain of the Port of Long Island Sound with maximum flexibility to respond to emergent threats and dangerous conditions. When less stringent security measures are required, the Captain of the Port communicates relaxed enforcement policies to the public. As a result, the full scope of these regulations is rarely imposed. Nevertheless, the flexibility to utilize those measures permitted by the TFR and required by the circumstances is vital to ensure port security in the present environment.

A change in the effective period of this rule was published on June 14, 2002 (67 FR 40859), which extended the rule through November 15, 2002. This change was necessary in order to conduct rulemaking for the establishment of permanent safety and security zones and regulated navigation area. Additional time is necessary to ensure the public has sufficient time to participate in the rulemaking process. The Coast Guard is extending the effective date of this rule until March 15, 2003, to allow the establishment of permanent safety and security zones, and a regulated navigation area by notice and comment rulemaking.

Regulatory Evaluation

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12886, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this final rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This finding is based on that the sizes of the zones are the minimum necessary to provide adequate protection for the public, vessels, and vessel crews. Any vessels seeking entry into or movement within the safety and security zones must request permission from the Captain of the Port or his authorized patrol representative. Any hardships experienced by persons or vessels are considered minimal compared to the national interest protecting the public, vessels, and vessel crews from the further devastating consequences of the aforementioned acts of terrorism, and from potential future sabotage or other subversive acts, accidents, or other causes of a similar nature.

The Coast Guard will be publishing a NPRM to establish permanent safety and security zones and the regulated navigation area that are temporarily effective under this rule.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

For the reasons addressed under the “Regulatory Evaluation” above, the Coast Guard expects the impact of this regulation to be minimal and certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this final rule will not have a significant economic impact on a substantial number of small entities. Maritime advisories will be initiated by normal methods and means and be widely available to users of the area.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant A. Logman, Waterways Management, Coast Guard GP/MSO, Long Island Sound, (203) 468-4429.

Small Businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

This rule calls for no new collection of information requirements under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Environment

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

The Copyright Office is publishing a final rule amending its regulation governing notices of termination of transfers and licenses covering the extended renewal term. The current regulation is limited to notices of termination made under section 304(c) of the copyright law. The Sonny Bono Copyright Term Extension Act created a separate termination right under section 304(d). The final rule establishes procedures governing notices of termination of the extended renewal term under either section 304(c) or section 304(d).

Under the 1909 copyright law, works copyrighted in the United States before January 1, 1978, were subject to a renewal system in which the term of copyright was divided into two consecutive terms. Under the system initially established by the 1909 legislation, the duration of copyright protection was for an original copyright term of 28 years and a renewal term of an additional 28 years. The Copyright Act of 1976, Public Law 94-554, retained the renewal system for works that were copyrighted before 1978, and were still in their first term on January 1, 1978. However, under section 304 of the copyright law, the renewal term was extended to 47 years, creating a total potential duration period of 75 years.

Besides generally extending the renewal term to 47 years, Congress also provided a termination procedure authorizing the termination of transfers or licenses during the extended portion of the renewal term. Established under section 304(c) of the copyright law, this provision created a means for authors and heirs of authors to secure the benefits of the additional 19 years added to the renewal term. In 1977, the Copyright Office adopted a regulation establishing the procedures for exercising the termination right. 37 CFR 201.10.

On October 27, 1998, President Clinton signed into law the Sonny Bono Copyright Term Extension Act, (“CTEA”), Public Law 105-298, 112 Stat. 2827 (1998). The CTEA amended the copyright law, title 17 of the United States Code, to extend for an additional 20 years the term of copyright protection in the United States. For works for which the duration of protection was determined under section 304 of title 17, the renewal term was extended from 47 years to 67 years. Like the Copyright Act of 1976, CTEA also contained a termination provision covering the newly extended portion (in this case, the last twenty years) of the extended renewal term. Established under section 304(d), this new right of termination was available only if the termination right under section 304(c) had expired by the effective date of CTEA, and if no termination had been previously exercised under section 304(c).

2. Proposed Regulation

On May 3, 2001, the Copyright Office published a proposed regulation modifying the termination regulation to include terminations made under section 304(d), in addition to terminations under section 304(c). 66 FR 22139. This was to be accomplished by making several adjustments to existing Copyright Office regulations.

Most of the changes involved 37 CFR 201.10, which governs notices of termination of transfers and licenses covering the extended renewal term. The proposed regulation added introductory text clarifying that the scope of the regulation covers terminations under either section 304(c) or section 304(d). In provisions where the existing regulation referred to section 304(c), the proposed regulation added an alternative reference to section 304(d).

The Office proposed substantive changes in only two areas. First, subsection (c)(i) of the proposed regulation provided that if the termination is made under section 304(d), the notice will provide a statement to that effect. Most of the notices of termination made under 304(d) which have been received in this Office already contained such a statement. No corresponding requirement was imposed in notices of termination issued under section 304(c) because such a requirement would have upset established legal practices in issuing notices under that section.

The second substantive change in the proposed regulation created new subsection (c)(vi), requiring that notices under section 304(d) contain a statement that termination of rights for the extended renewal term had not been previously exercised. This is a statutory requirement imposed in subsection 304(d), and including the requirement as part of the notice made it less likely that second notices of terminations would be filed.

The proposal further included a provision modifying 37 CFR 201.4(a)(v), regarding recordation of transfers and certain other documents, to include a reference to section 304(d).

3. Comments and Modifications

The Copyright Office received one comment on the proposed modification of the regulations. Professor Tyler Ochoa of Whitter Law School suggested two modifications in the content of the termination notice to make it consistent with the statute. First, he noted that since terminations cannot be made for works made for hire, notices of termination for both section 304(c) and (d) should affirmatively state that the work is not a work made for hire. Second, he pointed out that in order to be eligible to terminate under section 304(d), the termination right under section 304(c) must have expired by the effective date of the Sonny Bono Copyright Term Extension Act. Since CTEA took effect on October 27, 1998, Professor Ochoa calculated that termination under section 304(d) would only be available for works first published between January 1, 1923, and October 27, 1939. Accordingly, he asserted that notices of termination under section 304(d) should affirmatively assert that the work was originally published between these dates.

The Copyright Office has considered Professor Ochoa's comments carefully. The requirement in section 304(d) that the termination right under section 304(c) must have expired at the time CTEA took effect was not a provision reflected in the proposed regulation. We agree in principle with Professor Ochoa's comments on this point. However, we disagree with some of the details of his analysis. First, he states that the relevant dates are January 1, 1923, and October 27, 1939. In fact, although Professor Ochoa is correct in calculating that January 1, 1923, (the copyright date of the earliest works the terms of which were extended by CTEA) is the first of the two relevant dates, he appears to be a day late in his calculation of the second date. The better reading of section 304(d) is that copyright must have been secured no later than October 26, 1939. That is the last date on which copyright could have been secured for any work for which the section 304(c) termination right had already expired by October 27, 1998, the effective date of CTEA.

We calculate this date by noting that termination of a transfer or license under section 304(c) may be effected during a period of five years commencing “fifty-six years from the date copyright was originally secured,” 17 U.S.C. 304(c)(3), meaning that termination may be effected up to 61 years (56 + 5) after copyright was secured. However, in order to effect a termination, an author or an author's successor must serve a notice of termination “not less than two years before” the effective date, i.e., up to 59 years (61 − 2) after copyright was secured. 17 U.S.C. 304(c)(4)(a). Therefore, the termination right will have “expired,” see 17 U.S.C. 304(d), 59 years after copyright was secured. See S. Rep. No. 104-315, at 22 (1996) (purpose of section 304(d) was to “provide a revived power of termination for individual authors whose right to terminate prior transfers and licenses of copyright under section 304(c) has expired, provided the author has not previously exercised that right”). On the effective date of CTEA, October 27, 1998, an author of a work for which copyright had first been secured on October 27, 1939, could still have served an effective notice of termination under section 304(c). Therefore, there would have been no need to give that author the additional right to serve a notice of termination under section 304(d). But an author of a work for which copyright had first been secured on October 26, 1939, could not have served an effective notice of termination on October 27, 1998, because the 59-year deadline for serving a notice of termination would have expired at the end of the previous day, i.e., on October 26, 1998. Hence, works for which copyright was secured between January 1, 1923, and October 26, 1939, (and for which the section 304(c) termination right was not exercised) are eligible for the section 304(d) termination right.

Second, Professor Ochoa states that the requirement is that the work was first published between the relevant dates in 1923 and 1939. In fact the requirement is somewhat broader: copyright must have been secured on or between those dates. See 17 U.S.C. 304(d)(2). Although publication with notice was the most common means of securing copyright under the Copyright Act of 1909, copyright could also be secured for certain unpublished works by registering those works with the Copyright Office. See section 11 of the 1909 Act, 17 U.S.C. 12 (repealed effective Jan. 1, 1978).

Although we agree in principle with Professor Ochoa's observation, we note that the regulation already requires that the notice of termination designate the date on which copyright was originally secured. To add to this requirement an additional statement that the copyright was secured between January 1, 1923, and October 26, 1939, would be redundant. Nevertheless, it would be useful for parties involved in a termination under section 304(d) to be aware of this requirement. For this reason, we are adding the following sentence to the introductory paragraph of § 201.10: “a termination under section 304(d) is possible only if no termination was made under section 304(c), and federal copyright was originally secured on or between January 1, 1923, and October 26, 1939.”

With regard to the proposal to add a statement in the notice of termination that the work was not a work made for hire, the Copyright Office has decided not to adopt this suggestion. The regulation on notice of termination has never required that a notice of termination recite all of the statutory requirements underlying termination. The current regulation has been in effect since 1977, and no practitioner has reported a problem because the notice does not affirmatively state that the work being terminated is not a work made for hire. For this reason, the Copyright Office has decided not to disrupt settled practice in this area.

In reviewing generally the proposed regulation, the Copyright Office has also decided to adopt a number of technical corrections. In the proposed regulation, a new subsection (b)(vi) required that notices under section 304(d) contain a statement “that termination of rights for the extended renewal term has not been previously exercised.” This provision was intended to apply to the 19-year extended renewal term under section 304(c), rather than the 20-year extended renewal term under section 304(d). In order to clarify this matter, the language has been revised to read: “If termination is made under section 304(d), a statement that termination of renewal term rights under section 304(c) has not been previously exercised.”

In order to give authors and practitioners sufficient time to learn of these new requirements, the effective date of these amendments to the regulation is January 1, 2003. Notices of termination served on or after January 1, 2003, must comply with the amended regulation. Of course, authors and their representatives who serve notices of termination prior to that date are encouraged, although not required, to include the information that will be required in the amended regulation.

List of Subjects in 37 CFR Part 201

Copyright.

Final Regulation In consideration of the foregoing, the Copyright Office is amending part 201 of 37 CFR, chapter II in the manner set forth below: PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 is revised to read as follows: Authority:

This section covers notices of termination of transfers and licenses covering the extended renewal term under sections 304(c) and 304(d) of title 17, of the United States Code. A termination under section 304(d) is possible only if no termination was made under section 304(c), and federal copyright was originally secured on or between January 1, 1923, and October 26, 1939.”

(b) * * *

(1) * * *

(i) If the termination is made under section 304(d), a statement to that effect;

(vi) If termination is made under section 304(d), a statement that termination of renewal term rights under section 304(c) has not been previously exercised; and

(c) * * *

(2) In the case of a termination of a grant executed by one or more of the authors of the work, the notice as to any one author's share shall be signed by that author or by his or her duly authorized agent. If that author is dead, the notice shall be signed by the number and proportion of the owners of that author's termination interest required under section 304(c) or section 304(d), whichever applies, of title 17, U.S.C., or by their duly authorized agents, and shall contain a brief statement of their relationship or relationships to that author.

(d) * * *

(2) The service provision of either section 304(c) or section 304(d) of title 17, U.S.C., whichever applies, will be satisfied if, before the notice of termination is served, a reasonable investigation is made by the person or persons executing the notice as to the current ownership of the rights being terminated, and based on such investigation:

(i) If there is no reason to believe that such rights have been transferred by the grantee to a successor in title, the notice is served on the grantee; or

(ii) If there is reason to believe that such rights have been transferred by the grantee to a particular successor in title, the notice is served on such successor in title.

(4) Compliance with the provisions of paragraphs (d)(2) and (3) of this section will satisfy the service requirements of either section 304(c) or section 304(d) of title 17, U.S.C., whichever applies. However, as long as the statutory requirements have been met, the failure to comply with the regulatory provisions of paragraph (d)(2) or (d)(3) of this section will not affect the validity of the service.

(e) Harmless errors. (1) Harmless errors in a notice that do not materially affect the adequacy of the information required to serve the purposes of either section 304(c) or section 304(d) of title 17, U.S.C., whichever applies, shall not render the notice invalid.

(2) Without prejudice to the general rule provided by paragraph (e)(1) of this section, errors made in giving the date or registration number referred to in paragraph (b)(1)(iii) of this section, or in complying with the provisions of paragraph (b)(1)(vii) of this section, or in describing the precise relationships under paragraph (c)(2) of this section, shall not affect the validity of the notice if the errors were made in good faith and without any intention to deceive, mislead, or conceal relevant information.

This final rule amends the regulations for checking postage meters out of service and for handling faulty meters. The need to ensure the security of Postal Service revenues mandates these changes. The changes will clarify the responsibilities of the meter provider and improve the secure handling of faulty postage meters.

DATES:

The rule is effective November 15, 2002.

FOR FURTHER INFORMATION CONTACT:

Wayne Wilkerson, Manager of Postage Technology Management, at 703-292-3782, or by fax at 703-292-4050.

SUPPLEMENTARY INFORMATION:

The United States Postal Service is seeking to improve the secure handling of faulty postage meters by the approved postage meter providers and to enhance the accuracy of determinations by the postage meter providers of the proper amounts of postage to be refunded from faulty postage meters. We are amending the regulations for checking postage meters out of service and for handling faulty meters to address these concerns and to align the regulations with changes to the Domestic Mail Manual (DMM) regarding postage meters published in the Federal Register on November 8, 2001 (Vol. 66, No. 217, pages 56432-56447). We have deleted references to mechanical meters from the amended section since all mechanical postage meters have been decertified since 1999 and should no longer be in service. In this final rule, the Postal Service clarifies the definition of “faulty” as it applies to postage meters. In the proposed rule, the manufacturer sent all faulty meters to a special, secure facility for examination to determine the additional processing required to withdraw each meter. In this final rule, the initial examination of a faulty meter occurs in the field where the manufacturer or the manufacturer's agent determines whether the faulty meter can be withdrawn in accordance with procedures for a nonfaulty meter, or needs to be handled at the special, secure facility. We are also revising the regulation to allow 7 business days to prepare and file the report on faulty meters when the meter registers cannot be read, a summary report of the appropriate redundant electronic register memory readouts cannot be retrieved, and there is no evidence of tampering. We will amend the remaining sections of CFR part 501 in the near future so that they reflect the changes in the postage meter population and changes in the DMM.

The proposed rule was published in the Federal Register on May 2, 2002 (Vol. 67, No. 85, pages 22025-22027), with a request for submission of comments by June 3, 2002. We received three submissions from postage meter manufacturers in response to the solicitation of public comments. The Postal Service gave thorough consideration to the comments it received, modified the proposed rule as appropriate, and now announces the adoption of the final rule.

Discussion of Comments

1. The three commenters requested clarification of the term “faulty.”

The Postal Service clarified the definition of “faulty” as it applies to postage meters. Faulty meters include those that are inoperable, those that are misregistering or the registers are unreadable, those that inaccurately reflect their current status, those that show any evidence of tampering or abuse, and those for which there is information or other indication that the meter has some mechanical or electrical malfunction of any critical security component, such as any component the improper operation of which could adversely affect Postal Service revenues, or of any memory component, or that affects the accuracy of the registers or the accuracy of the value printed. The proposed rule is revised in response to these comments.

2. One commenter assumed that the requirement for manufacturers to “(e)nsure that faulty meters are not presented to the licensing Post Office for checkout or withdrawal” meant that nonfaulty meters could be presented to the licensing Post Office.

This assumption is incorrect. The meter licensee returns all meters to the manufacturer or the manufacturer's agent for withdrawal, as directed in DMM 57, section P030.3.13, Returning a Postage Evidencing System or PSD. The manufacturer or its agent checks nonfaulty meters out of service under § 510.23(g) and either has an approved process for withdrawal, or ensures that the meter is examined by a Postal Service employee. Faulty meters are returned to the manufacturer and handled by the manufacturer in accordance with the procedures in § 501.23(h). To clarify the withdrawal process, we deleted the paragraph referenced in this comment from the proposed rule.

3. Two commenters noted the difficulty of complying with the requirements for obtaining the licensee's signature to complete PS Form 3601-C, Postage Meter Activity Report, for faulty meters.

The Postal Service understands that as of the effective date of this rule, PS Form 3601-C does not include a specific place for the licensee's signature confirming that the information on the form is correct, as required by the proposed regulation. However, until the form is revised and widely distributed, and the inventory of old versions of the form is depleted, the manufacturer's representative should ensure that the licensee (or the licensee's approved representative) signs the form and prints his or her name clearly under items C3 and C5. The Postal Service suggests that when the licensee is unavailable, the licensee's representative or agent who is responsible for releasing the meter to the manufacturer and signing the manufacturer's paperwork should also be responsible to review and sign the Postal Service form. There is no change to the proposed rule as a result of this comment.

4. Some commenters requested more information on the reporting requirements for faulty meters. Commenters also requested additional time to submit the reports.

Postage Technology Management will notify manufacturers when there are any changes from current reporting requirements for faulty meters. The Postal Service has reviewed the request for additional time to submit required reports and agrees that additional time should be allowed. The regulation is revised to allow 7 business days to prepare and file the report on faulty meters when the meter registers cannot be read, a summary report of the appropriate redundant electronic register memory readouts cannot be retrieved, and there is no evidence of tampering.

5. One commenter suggested that instead of requiring licensees to submit daily usage logs whenever register values cannot be read, the logs should only be required when the manufacturer is unable to obtain the systems report from the meter.

The Postal Service wants to encourage meter licensees to keep daily usage logs. Providing adequate backup for register values is the manufacturer's responsibility and the logs can provide the information when the meter is faulty. There is no change to the proposed rule as a result of this comment.

6. One commenter asked if there can be more than one dedicated secure facility for handling faulty meters that cannot be handled under the procedures used for nonfaulty meters.

A manufacturer can have multiple secure facilities for handling faulty meters that cannot be handled under the procedures used for nonfaulty meters. However, the Postal Service must inspect and approve each such facility. No change is made to the proposed rule as a result of this comment.

The initial examination of a faulty meter occurs in the field where the manufacturer or the manufacturer s agent determines whether the faulty meter can be withdrawn in accordance with procedures for a nonfaulty meter, or needs special handling. However, when the registers cannot be read, or a summary report of the appropriate redundant electronic register memory readouts is not available using Postal Service-approved methods, or there is evidence of tampering, or there is some information or other indication that the meter has some mechanical or electrical malfunction that affects the accuracy of the registers or the accuracy of the value printed, the meter must be returned to the special, secure facility for processing. Shipment of these meters poses a special risk. No manufacturer has or will be granted written Postal Service approval to ship these faulty meters using means other than Registered Mail service, Express Mail service, or Priority Mail service with Delivery Confirmation service. If these meters are shipped by alternative (non-Postal Service) means, the Postal Service will not authorize payment of refunds for postage value left on the meter, since a lack of security in shipping could make the faulty meter vulnerable to tampering. However, nonfaulty meters, and faulty meters that can be withdrawn using the same procedures as for nonfaulty meters, may be shipped using alternate carriers when the manager of Postage Technology Management, Postal Service Headquarters, gives written permission to ship by another means or service, based upon an assessment of the security of the proposed alternative. No change is made to the regulation in response to these comments.

8. One of the commenters questioned the use of “highest average daily usage” in calculating refund amounts, especially for seasonal users, and asked that the regulation recognize other means to retrieve meter register readings.

The methods for developing other data to support the request for Postal Service approval of a refund amount are given as examples of approved approaches and are not meant to preclude the use of other approaches. No change is made to the regulation in response to this comment.

9. One of the commenters suggested the Postal Service consider a minimum hold period for faulty meters to be sure all Postal Service questions are answered.

The manufacturer should hold the faulty meter for as long as it believes necessary to respond to any questions from the Postal Service or to appeal a Postal Service decision on a postage adjustment amount. No change is made to the regulation in response to this comment.

10. Commenters asked for clarification of when the Postal Service would require the manufacturer, rather than the Postal Service, to issue the refund of any postage value said to remain in a faulty meter. One commenter suggested that the Postal Service give prior notice to the manufacturer before requiring the manufacturer to issue the refunds. The commenters also suggested alternative methods for handling refunds for postage value remaining on a faulty meter.

The Postal Service reimburses remaining postage value in a defective postage meter because the funds are Postal Service funds. Normally, the Postal Service handles the refund and processes the reimbursement for customer convenience. However, when a meter or meter model is defective, the manufacturer, rather than the Postal Service, is responsible for the defect and should be responsible for handling the refund of Postal Service funds to the customer subject to reimbursement by the Postal Service. The Postal Service may not have prior notice that a meter model was defective and susceptible to malfunctioning until it sees a pattern of excessive refund requests. Excessive defects may require resubmission of the meter model in question for additional testing to ensure that it meets all performance criteria and maintains the security of Postal Service funds. The regulation does not specify or limit the choice of payment mechanism to be used when the manufacturer issues the refund of any postage value remaining in a faulty meter. No change is made to the regulation as a result of these comments.

List of Subjects in 39 CFR Part 501

Administrative practice and procedure, Postal Service.

The Amendment For the reasons set out in this document, the Postal Service is amending 39 CFR part 501 as follows: PART 501—AUTHORIZATION TO MANUFACTURE AND DISTRIBUTE POSTAGE METERS 1. The authority citation for part 501 continues to read as follows: Authority:

(g) Check a nonfaulty meter out of service in accordance with the procedures that the Postal Service has approved for that meter when the meter is to be removed from service for any reason. Ensure that a Postal Service employee certifies the register readings and clears the descending register when the meter is checked out of service, unless the Postal Service has approved other procedures for the specific meter model. Complete the checkout process in a timely manner and transmit the required data to the appropriate Postal Service information systems. Ensure that no employee of the meter manufacturer or any third-party changes, interferes with, or performs any element of the Postal Service employee's established checkout and withdrawal process for any meter, unless approval for the change in procedures is granted in writing by the Postal Service.

(h) Handle faulty meters, including those that are inoperable, those that are misregistering or the registers are unreadable, those that inaccurately reflect their current status, those that show any evidence of tampering or abuse, and those for which there is information or other indication that the meter has some mechanical or electrical malfunction of any critical security component, such as any component the improper operation of which could adversely affect Postal Service revenues, or of any memory component, or that affects the accuracy of the registers or the accuracy of the value printed, as follows:

(1) Ensure that all functions required to handle faulty meters are completed in a timely manner and in accordance with Postal Service regulations and procedures.

(2) Begin the process to retrieve any faulty meter within 2 business days of being notified of a problem.

(3) Complete PS Form 3601-C, Postage Meter Activity Report, in the presence of the licensee and obtain the licensee's signature on the form confirming that the information is accurate.

(i) Include the register information on the form when the registers can be read.

(ii) Print the system report, if available for the meter, and attach the report to PS Form 3601-C when the register values cannot be read.

(iii)Have the licensee provide any original daily usage logs with PS Form 3601-C for refund calculation when the register values cannot be read.

(4) Identify and tag the meter as faulty as soon as the manufacturer or the manufacturer's agent receives it from the customer. Keep the identification tag and the PS Form 3601-C, which was completed under paragraph (h)(3) of this section, with the faulty meter until processing is completed and the meter is returned to service or is scrapped.

(5) Secure all faulty meters and maintain the integrity of the meter and of the information residing on the meter. Maintain control of the meter until processing is completed.

(6) Ensure that under no circumstance are registers on a faulty meter cleared or any funds refunded or transferred until examination and processing are completed, the Postal Service has reviewed and analyzed the manufacturer's report and determined the appropriate postage adjustment, if any, and approved refund procedures are followed.

(7) Maintain a record of the faulty meter and all changes in its custody, state, and condition (including availability of register information) from the time the meter is reported as faulty until processing is completed under paragraphs (h)(9), (12), or (14) of this section. Make the record available to the Postal Service for its review upon request.

(8) Examine each meter withdrawn for faulty operation as soon it is received from the customer to determine if the registers can be read and if there is any evidence of tampering.

(9) When the registers can be read or a summary report of the appropriate redundant electronic register memory readouts is available using Postal Service-approved methods, and there is no evidence of tampering or any problem covered by paragraph (h)(13) of this section:

(i) Check out the meter and withdraw it from service under paragraph (g) of this section.

(ii) Submit a report to the Postal Service by the 15th of each month listing all faulty meters with readable displays and no other problems received in the prior month, identifying the meter and including an explanation of the meter malfunction.

(10) Maintain a dedicated, secure facility, approved by the Postal Service, for handling faulty meters that cannot be handled under paragraph (h)(9) of this section.

(11) Ship faulty meters not handled under paragraph (h)(9) of this section directly to the secure facility described in paragraph (h)(10) of this section for processing. Ship these faulty meters via Registered Mail service, Express Mail service, or Priority Mail service with Delivery Confirmation service.

(12) If there is no evidence of tampering, if the meter registers cannot be read, and if a summary report of the appropriate redundant electronic register memory readouts cannot be retrieved:

(i) Develop other data to support the request for Postal Service approval of a postage adjustment amount, such as a manual calculation of the estimated value of the descending register based on estimated highest average daily usage, or applicable system-generated register documentation. Include the original daily usage logs maintained by the customer, if any, with the supporting data.

(ii) Furnish a report explaining the malfunction to the Postal Service within 7 days of receiving the meter. Accompany the report with a recommendation of the postage adjustment amount that includes all data developed to support the recommendation.

(iii) Maintain control of those meters that have unreadable registers and hold them in the manufacturer's dedicated, secure facility described in paragraph (h)(10) of this section until a representative of the Postal Service approves the postage adjustment amount or verifies the condition of the meter before proceeding with the meter repair or destruction.

(13) In some instances, even though the registers can be read, there is information or other indication that the meter has some mechanical or electrical malfunction that affects the accuracy of the registers or the accuracy of the value printed. Handle such meters under paragraph (h)(12) of this section.

(14) If there is evidence or suspicion of tampering:

(i) Ensure that the meter is handled in a secure manner and maintained in its original state until the Postal Service or its agent can be present during the examination.

(ii) After examination, if approved by the Postal Service or its agent, process the meter under paragraph (h)(12) of this section.

(15) Issue the refund of any postage value said to remain in a faulty meter, after Postal Service approval of the amount of the refund, when the Postal Service requires it. Request reimbursement from the Postal Service for these refunds by periodically submitting a reimbursement request letter to the Postal Service. Accompany the letter with listings and support documentation for each refund and indicate the cause of failure for each incident.

EPA is taking final action to limit the duration of our approvals of motor vehicle emissions budgets (“budgets”) in certain existing California state implementation plans (SIPs) that provide for progress, attainment, and maintenance of the 1-hour ozone, 8-hour carbon monoxide (CO), and annual nitrogen dioxide (NO2) national ambient air quality standards (NAAQS). Specifically, we are limiting our approvals of the existing budgets to last only until the effective date of our adequacy finding for new budgets that replace the existing approved budgets for the same pollutant, Clean Air Act (CAA) requirement, and year. The State of California will submit new budgets as part of comprehensive revisions to certain approved progress, attainment, and maintenance plans that reflect updated information and a new version of California's motor vehicle emission factor model. On the effective date of EPA's adequacy finding for a new budget, our approval of the existing budget would terminate and thus the new adequate budget would apply instead of the existing budget for transportation conformity purposes.

EFFECTIVE DATE:

This rule is effective on December 16, 2002.

ADDRESSES:

You can inspect copies of the docket for this action at EPA's Region 9 office during normal business hours. You can inspect copies of the SIP materials at the following locations:

On July 16, 2002 (67 FR 46618), we proposed to limit the duration of our prior approvals of existing motor vehicle emissions budgets associated with the SIPs for the areas listed below in Table 1—California SIPs Whose Budget Approvals Are Being Modified. Under this modification, the existing budgets will be approved and apply for transportation conformity purposes only until we have found the new budgets that California submits to be adequate. The proposed action provides background information on the California SIPs, the State's request, the federal rule (40 CFR part 93) and current policies to implement the transportation conformity provisions of CAA section 176(c), and our process for determining adequacy of motor vehicle emission budgets.1

1 The adequacy process is explained at 40 CFR 93.118(e)(4) and (5), and in a May 14, 1999 memo from Gay MacGregor, Director, Regional and State Programs Division, Office of Mobile Sources, entitled, “Conformity Guidance on Implementation of March 2, 1999 Conformity Court Decision.”

Our proposed action was requested by the California Air Resources Board (CARB) because the State is in the process of making comprehensive updates and enhancements to most of its air quality plans and budgets, which will include much more accurate motor vehicle emission information than existing SIPs. California wishes to replace the existing approved budgets as soon as possible so that the new budgets can be used in conformity. Normally, new budgets that replace existing budgets in approved plans cannot be used until the corresponding plans have been fully approved as part of the SIP. However, if approval of the existing budgets expires when we determine that the new budgets are adequate (as we proposed), the superior new budgets can be then employed in transportation conformity determinations within a few months of their submission, rather than only when the SIP is finally approved, which could take as long as 18 months.

In a June 14, 2002, letter from Mike Kenny, CARB Executive Officer, to Wayne Nastri, EPA Region 9 Regional Administrator, CARB states that the new plan revisions will benefit air quality and strengthen the SIPs by incorporating: New federally enforceable commitments and control measures; new and updated data that reflect the various emission control rules adopted since the old SIPs were developed; recent vehicle test data for cars and trucks to better represent real-world emissions; and updated vehicle registration data and activity data. The CARB letter concludes: “Without the ability to replace existing budgets with submitted ones using the budget adequacy process, the benefits of using the updated data from the stronger, more effective SIPs would not be realized for a year or more after the SIPs are submitted, due to the SIP approval process.” In response, we proposed to modify our approvals of the California SIPs in light of the age of the motor vehicle data in the existing SIPs and the improvements to be included in the new SIPs.

Today's final action is not intended to modify the generally applicable rules regarding when submitted budgets become effective for the purposes of transportation conformity. Rather, today's action sets forth a means to accommodate the State's request to allow for the prompt use of new more accurate budgets in California within the bounds of existing regulatory and statutory requirements.

II. Public Comments

We received three comments: one letter of support, one letter requesting clarification, and one letter opposing the proposed action. We summarize and respond to the comments below.

A. Comments From Georgia

A letter of support was submitted jointly by the Environmental Protection Division of the Georgia Department of Natural Resources, the Georgia Regional Transportation Authority, and the Atlanta Regional Commission. These agencies supported the flexibility being proposed for California and encouraged its wide application for other nonattainment and maintenance areas:

The Agencies are in complete support of the proposed EPA action, in California and elsewhere, as it will eliminate the lengthy SIP approval process currently needed to replace existing SIP budgets, and will enable a quicker, smoother transition to motor vehicle emissions budgets which more accurately reflect current conditions-with the ultimate end being improved alignment between mobile source emission estimates used in both the SIP and the transportation plan and program. By reducing the potential delay experienced before new budgets may be utilized and by reducing the associated risk to the transportation planning process, we believe that this rulemaking also provides an incentive for nonattainment and maintenance areas to revisit their approved budgets more frequently. This would improve the air quality planning process, and ultimately air quality, by causing newer and better planning assumptions to be incorporated into SIPs more often. Therefore, we encourage EPA to provide the flexibility contained in this rulemaking throughout the country, especially in those areas, such as Atlanta, where there is an active and effective interagency consultation process.

Response: We appreciate the support of the Environmental Protection Division of the Georgia Department of Natural Resources, the Georgia Regional Transportation Authority, and the Atlanta Regional Commission for this action on SIPs in California. In response to their request that we extend this flexibility to all nonattainment and maintenance areas, we can only do so under certain specific circumstances. First, a state must acknowledge that its currently approved budgets have become outdated or are deficient. Second, the state must make a commitment to update these budgets as part of a comprehensive update of its SIP. Third, a state must request that EPA limit the duration of the approval of the state's current approved SIPs. If a state meets all of these criteria, it would be appropriate to allow that state also to take advantage of this flexibility.

California has committed to undertake comprehensive updates of nearly two dozen attainment demonstrations and/or maintenance plans. Many of these plans have not been updated in the last eight years. In that time much has been learned about motor vehicle emissions and many planning assumptions have been updated. As discussed above, California has sent a letter to EPA formally requesting that we limit the duration of the State's currently approved SIPs. Therefore, California has fulfilled the criteria necessary to receive this flexibility and we believe it is now appropriate to limit our prior SIP approvals and allow new budgets that come from these revised SIPs and reflect much better information to be used for conformity after they are found adequate.

B. Comments From Miwok Indians

The following comments were submitted on behalf of the Shingle Springs Band of Miwok Indians (“Tribe”).

1. EPA should clarify that projects from federally approved transportation plans may continue if new budgets apply.

Response: In general, the establishment of new applicable budgets would not affect projects incorporated in approved regional transportation plans (RTPs) and transportation improvement plans (TIPs). A conformity determination remains valid even if we later, upon further analysis, find new budgets applicable. The fact that new information became available that changed the applicable budgets does not affect a prior conformity determination; a subsequent conformity determination would take the new information into account. However, whether or not a new budget applies, a project carried forward into a new RTP or TIP must be analyzed, together with all other federally supported highway and transit activities, to demonstrate that the RTP or TIP as a whole is consistent with the SIP, using the latest planning assumptions, the approved motor vehicle emissions factor model, and the currently applicable budgets. Also, regardless of which budget applies, the Metropolitan Planning Organization (MPO) may elect not to include any project in the next RTP or TIP for the area.

2. EPA failed to include proposed regulatory language in the proposal.

Response: We are not obligated to issue rule language in a proposed rulemaking, and generally do not do so in actions on State plans. We believe that the proposed rulemaking was clear in expressing our intended action.

1. EPA's rulemaking record must disclose that ARB's proposed action is being undertaken to avoid statewide conformity issues by replacing the emissions budgets used to demonstrate attainment in currently approved SIPs with enlarged emissions budgets that have no demonstrated relationship to attainment of the NAAQS. ARB has apparently not clearly committed to review the adequacy of prior attainment demonstrations, or submit new demonstrations, as part of its current plan to develop revised MVEBs using current estimates of motor vehicle emissions.

Response: The purpose of our action is to expedite use of new budgets based on updated planning data and models, and consistent with comprehensive new progress, attainment, and maintenance plans. We expect that the new budgets would have a demonstrated relationship to attainment and maintenance of the NAAQS, and we would not find the new budgets adequate if that were not the case. We can find the budgets adequate only if the plans meet all the criteria in § 93.118(e)(4), as discussed below in response to comment 3. In fact, we expect that the use of updated information on motor vehicle emissions, emissions of other pollutant categories, air quality data, and air quality assessments in revised plans should strengthen the relationship of the budgets to the demonstrations of attainment and maintenance in each affected area.

Response: Our proposal to terminate the approval of existing budgets in certain California SIPs at the time of an adequacy finding for new budgets does not conflict with judicial interpretations or CAA section 176(c). As discussed below, our transportation conformity regulations do allow for submitted budgets to apply following our determination of adequacy but before SIP approval, under circumstances detailed in 40 CFR 93.118(e). Although the court in Environmental Defense Fund v. EPA et al., 167 F.3d 641 (D.C. Cir. 1999) remanded 40 CFR 93.118(e)(1), the offending provision was an automatic assumption of adequacy 45 days after the SIP was submitted, unless before that date we determined that the budgets were inadequate. The court did not remand the other regulatory provisions relating to use of adequate budgets, and our proposal is entirely consistent with the our current regulations. In addition, the fourth circuit also recently found it appropriate to use submitted budgets that had been found adequate where no prior approved budget was in place. See 1000 Friends of Maryland v. Browner, 265 F.3d 216 (4th Cir. 2001).

Our proposal provides a mechanism for enhancing compliance with the CAA section 176(c)(1) requirement that “[t]he determination of conformity shall be based on the most recent estimates of emissions. * * *” Absent our proposed mechanism, transportation conformity determinations in these areas of California would need to be based on budgets and air quality plans that may have been prepared more than eight years ago until we complete comprehensive review of the air quality plans, propose rulemaking, and issue final approval of the budgets and plans. This period may take as much as 18 months from the date on which the plans and budgets were submitted. Under our proposed mechanism, transportation planning organizations must use new budgets that are based upon updated air quality plans using the most recent emissions estimates, as soon as we find these budgets to be adequate under the provisions of 40 CFR 93.118, a process that is generally completed within approximately 90 days from the submittal date.

b. EPA's conformity regulations (40 CFR 93.118(e)) provide that submitted SIPs do not supersede budgets in approved SIPs for the period of years addressed by the approved implementation plan.

Response: As mentioned, our proposal to terminate the approval of existing budgets in certain SIPs at the time of an adequacy finding for new budgets does not change our transportation conformity regulations, which allow for use of a budget prior to SIP approval in cases where there is no budget approved in the SIP for the same year and CAA requirement (40 CFR 93.118(e)). By terminating our approval of the existing budgets on the date that we find new, revised budgets to be adequate, we eliminate the old budgets from the approved SIP and thus allow the new budgets to apply under the conformity rules for purposes of transportation conformity. In this manner, our proposed action provides an option, within the framework of our existing regulations, for accelerating the air quality and transportation benefits of basing transportation plans and conformity determinations on California's new and improved plans and budgets, in lieu of the outdated SIPs and budgets that were developed and adopted, in many cases, eight years ago.

Before the revised budgets may go into effect, however, we must first review both the budgets and the air quality plans and make a finding that these updated budgets are adequate. Our finding must follow the procedures and criteria in 40 CFR 93.118 (e)(4) and (5), and the guidance contained in the EPA Guidance Memorandum from Gay MacGregor to Regional Air Directors entitled “Conformity Guidance on the Implementation of the March 2, 1999 Conformity Court Decision” (May 14, 1999). Therefore, our proposed mechanism for allowing use of these new budgets complies with the 40 CFR 93.118(e) provisions in our transportation conformity regulations, and our findings on the adequacy of the budgets in the submittals will comply with all applicable provisions of the regulations.

3. EPA may attempt to find budgets adequate based on incomplete and/or patently inadequate SIPs, creating great uncertainty in air quality and transportation planning processes while compromising air quality and public health.

Response: We will follow the statutory criteria and the regulatory criteria in 40 CFR 93.118(e)(4) and (5) for finding submitted budgets adequate. Among other mandated findings, we must analyze the budget and air quality plan and determine that the following provisions of 93.118(e)(4) have been met:

(iv) The motor vehicle emissions budget(s), when considered together with all other emissions sources, is consistent with applicable requirements for reasonable further progress, attainment, or maintenance (whichever is relevant to the given implementation plan submission);

(v) The motor vehicle emissions budget(s) is consistent with and clearly related to the emissions inventory and the control measures in the submitted control strategy implementation plan revision or maintenance plan; and

(vi) Revisions to previously submitted control strategy implementation plans or maintenance plans explain and document any changes to previously submitted budgets and control measures; impacts on point and area source emissions; any changes to established safety margins * * *; and reasons for the changes (including the basis for any changes related to emission factors or estimates of vehicle miles traveled).

If the SIPs are incomplete or inadequate or otherwise fail to meet applicable requirements in our transportation conformity regulations, we will not determine the new budgets adequate, and the existing budgets will continue to apply. Additionally, the public will have the opportunity to comment on both California's proposed SIP revisions and on our adequacy findings. We will take all submitted comments into account when making adequacy determinations.

4. EPA previously rejected this interpretation in the 1997 conformity regulations: “Although EPA acknowledges that using updated budgets may be preferable, EPA does not believe that it is legal to allow a submitted SIP to supersede an approved SIP for years addressed by the approved SIP. As stated in the proposal, Section 176(c) specifically requires conformity to be demonstrated to approved SIPs.” 62 FR 43783.

Response: Again, our proposal would not amend the existing regulation, which provides that “submitted implementation plans do not supersede the motor vehicle emissions budgets in approved implementation plans for the period of years addressed by the approved implementation plan.” 40 CFR 93.118(e)(1). California has requested that we approve its request to terminate the approval of the existing budgets when we find new budgets to be adequate, as a means of complying with the regulation while reducing the period of time before which the new budgets can be used for transportation planning purposes. There is nothing in the law or regulations that prohibits us from limiting the duration of a SIP approval if it is requested by the state. If our approval expires and there is no approved SIP with budgets for a given year and CAA purpose, then adequate budgets for that year and CAA purpose can apply for conformity. We agree with the State that, for the SIPs identified above in Table 1, the benefits of speeding the applicability of the new budgets are considerable. This is primarily because the existing California SIPs and budgets were developed, adopted, and approved many years ago, and new budgets and SIPs for these areas are expected to be based on comprehensively updated and enhanced information and control measures. We are taking this action because California has acknowledged the age of the information in the existing SIPs, has requested that we limit the duration of the approval, and has committed to submit new SIPs which include superior motor vehicle emissions data. We continue to agree with the State that in these cases it would provide an advantage to air quality and public health protection if the new budgets could be used once we find them to be adequate before comprehensive rulemaking on the new attainment, progress, and maintenance submittals can be completed.

5. Budget adequacy can only be based on valid, modeled attainment demonstrations. Budgets must be demonstrated through modeling to be consistent with attainment, maintenance, and rate of progress.

Response: We expect that the new SIP submittals will document the consistency of the budgets and the attainment, maintenance, and rate of progress plan elements, as applicable, and we cannot find them adequate if they do not. However, while ambient modeling is required for most attainment plans, it is not mandatory for maintenance plans and it is not a relevant exercise for rate of progress plans, which address CAA-specified schedules of emission reductions from a SIP emissions baseline level.

6. The proposed rulemaking is silent on the standards that EPA will employ in determining the adequacy of control strategies achieving emissions reductions necessary to accomplish attainment. The proposed strategy is unlawful to the extent that the State relies on enforceable commitments to submit later demonstrations that the NAAQS will be attained if higher estimates of motor vehicle emissions are allowed, and subsequent enforceable measures will be submitted to make up for excess emissions resulting from enlarged budgets. EPA's reliance upon mere “enforceable commitments” to accomplish further emissions reductions necessary for attainment, maintenance or rate of progress is patently illegal.

Response: The standards we use to determine whether control strategies in a submitted SIP are approvable were not explicitly set forth in the proposal. As mentioned earlier, the standards for finding budgets adequate are found in the conformity rule at 40 CFR 93.118(e)(4) and (5). Since areas can account for the air quality benefit of control measures not yet implemented but which are defined in a written commitment, it is appropriate to find a SIP adequate for conformity purposes even if it contains written commitments.

The comment raises potential SIP approval issues, which could be germane to our future rulemaking on the new plan submittals. If the commenter believes that these approval issues arise at that time, we invite the commenter to submit comments specific to the submitted SIPs during the public comment periods associated with our rulemaking on the plans. In today's action, we are simply limiting the time frame of prior approvals of budgets and are not approving any new plan submittals.

7. EPA cannot rely on its failure to conform its regulations to the Court's remand in EDF versus EPA as a basis for conducting a state-specific rulemaking that attempts to avoid the national rulemaking process required by Congress for promulgation of conformity regulations.

Response: The commenter indicates that we are taking this action to limit the approval of California's SIPs because we have not yet revised the conformity regulation to reflect the court's March 2, 1999, decision on the EDF lawsuit. However, this action is not connected to the March 2, 1999, court decision. We are taking this action in response to a request from California to revise the approval of attainment demonstrations and maintenance plans within the State based upon the age of the information in those plans. We would have to act on this request whether or not we had revised the conformity regulation in response to the court's March 2, 1999, decision.

Our action to limit the approval of California's SIPs does not make any change to the existing transportation conformity rule or to the way it is normally implemented with respect to other submitted and approved SIPs, but rather applies narrowly to the specific SIPs and circumstances as discussed above. Since we are not changing the federal conformity regulation we do not need a national rulemaking. We are acting appropriately in that we are taking a local action to amend the approval of attainment demonstrations and maintenance plans within one state at the request of that state. In any event, we are conducting rulemaking proceedings, are considering all submitted comments, and have coordinated with the U.S. Department of Transportation on this action.

We are approving California's commitment to revise the currently approved budgets; therefore, we want our approval of the current budgets to last only until adequate revised budgets are submitted pursuant to the commitment. We believe the revised budgets should apply as soon as we find them adequate; we do not believe it is appropriate to wait until we have approved the revised attainment demonstrations and/or maintenance plans. This is because we know now that once we have confirmed that the revised budgets are adequate, they will be more appropriate than the originally approved budgets for conformity purposes.

Specifically, once California has updated the currently approved SIPs to reflect all current control measures and the latest information on vehicle emissions, the appropriate motor vehicle emissions budgets should reflect those measures and vehicle emission information. Otherwise, the budget would not be the level of motor vehicle emissions that is consistent with the attainment demonstrations or maintenance plans.

If we do not clarify our approval of the current budgets, California will revise the budgets as committed, but they would not be able to use them for conformity purposes until the SIPs were approved. This would defeat the purpose of California's commitment for the budgets to be revised quickly to incorporate updated more accurate information. In contrast, according to today's proposal, the revised budgets could be used for conformity after we have completed our adequacy review process, which we generally complete within 90 days after revisions are submitted, provided they are adequate. Today's action is consistent with the court's decision. The court held that budgets could not automatically become adequate after a certain period of time, but that we must make an affirmative finding on the adequacy of budgets after allowing the public the opportunity to comment. We will be making a finding of adequacy before the new submitted budgets are used.

8. Enforceability issues are muddled. If revised control strategies are not fully consistent with strategies in the approved SIP, industry may be able to sue to enforce the approved SIPs' less effective control measures until the effective date of EPA's approval of revised SIPs.

Response: We do not believe that this comment is relevant to our proposed rulemaking, which deals with the replacement of budgets, not control measures. In addition, we do not anticipate that this will be a problem since the control measures in the submitted SIPs would have to be enforceable at the State level prior to submission to EPA.

9. Commenter is adversely affected by EPA's action, which will permit the expenditure of federal transportation funds on projects that fail to reduce air pollution emissions and thus cause or contribute to unhealthful air quality. EPA's action will promote single occupancy vehicle travel rather than creating viable alternative transportation systems.

Response: The commenter did not explain how our proposed action would promote single occupancy vehicle travel or fail to promote alternative transportation systems. Our proposed action does not permit the expenditure of federal transportation funds. We merely propose to terminate the approval of existing budgets for specified SIPs on the effective date of our adequacy finding, if any, on new budgets. Further, we cannot find any new budgets adequate unless they are consistent with attainment, progress, and maintenance of the air quality standards. Before federal transportation funds are awarded, the MPO must make a conformity determination on its long range plan and transportation improvement program. The public has the opportunity to comment on the content of the long range plan, transportation improvement program and conformity determination. The Federal Highway Administration and Federal Transit Administration must also determine the conformity of federally funded or approved highway and transit plans, programs, and projects to the applicable budget, based on the conformity determination prepared by the metropolitan planning organization for the area prior to awarding any federal funds.

10. The venue for any petition for review of the proposed action will lie in the U.S. Court of Appeals for the Ninth Circuit pursuant to Section 307(b).

Response: We agree with this comment.

11. Transportation plans, programs, and project approvals based on budgets that are subsequently determined to not be adequate as part of a judicial proceeding or SIP disapproval without a protective finding are subject to suspension, unless the project demonstrates a net air quality improvement or conformity exemption.

Response: We are not proposing any change in the transportation conformity regulations, which set out the consequences of SIP disapproval at 40 CFR 93.120(a). However, under 40 CFR 93.118(e)(3), conformity determinations made to adequate budgets are not disturbed by subsequent findings of inadequacy.

12. Because the proposed action deviates from each area's SIP relating to conformity criteria, procedures, and regulations, each area's SIP will need to be revised to reflect the ad hoc exemption from the national conformity rules.

Response: The San Francisco Bay Area has approved SIP regulations for transportation conformity. The remaining responsible California air quality agencies for the areas listed in Table 1 do not have approved SIP rules addressing transportation conformity, but rather comply with the Federal transportation conformity regulations at 40 CFR part 93, Subpart A. As mentioned above, we are not changing these Federal regulations in this action. We will ensure that the responsible California agencies, if they elect to adopt a revision to their attainment, progress, or maintenance SIPs and establish replacement budgets, do so through a process consistent with the applicable transportation conformity regulations, and that this process clearly identifies that one of the consequences of adopting and submitting a revised budget would be the termination of our approval of the existing budget if and when we find the replacement budget adequate.

13. Commenter calls upon the State to aggressively develop statewide transportation control measures for the 2003 SIPs, including the commuter choice program; state and federal tax incentives for parking cash out; promotion of regional transit systems; and smart growth.

Response: While we support the development of transportation control measures (TCMs) as components of SIPs, including such measures as the commenter advocates, we do not consider the comment germane to our action to limit approval of past SIPs, nor do we have a position with respect to the appropriateness of statewide TCMs as opposed to regional or local TCMs.

III. Final Action

For the reasons stated above, and in the July 16, 2002, proposal, we are taking final action to limit the duration of our approvals of budgets in the existing SIPs identified in Table 1. In all other respects, the Table 1 SIPs will remain federally approved and enforceable unless and until we finalize approval of revised plans, and our limitations apply only to the extent that any new plans that we find adequate explicitly supersede the approved SIPs.

IV. Administrative Requirements A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13045

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

C. Executive Order 13132

Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely modifies certain previous SIP approval actions and imposes no additional requirements beyond those imposed by state law. The rule does not therefore alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

D. Executive Order 13175

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

E. Executive Order 13211

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

F. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This final rule will not have a significant impact on a substantial number of small entities because these modifications of SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements. Therefore, because the Federal modification of certain previous SIP approvals does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

G. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the modification of certain prior SIP approvals does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

EPA believes that VCS are inapplicable to today's action because it does not require the public to perform activities conducive to the use of VCS.

I. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This rule is not a “major” rule as defined by 5 U.S.C. 804(2).

J. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 14, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Dated: November 5, 2002. Alexis Strauss, Acting Regional Administrator, Region IX. Part 52, chapter I, title 40 of the CFR is amended as follows: PART 52—[AMENDED] 1. The authority citation for Part 52 continues to read as follows: Authority:

(a) Approval of the motor vehicle emissions budgets for the following ozone rate-of-progress and attainment SIPs will apply for transportation conformity purposes only until new budgets based on updated planning data and models have been submitted and EPA has found the budgets to be adequate for conformity purposes.

(1) Antelope Valley, approved January 8, 1997;

(2) Coachella, approved January 8, 1997;

(3) Kern, approved January 8, 1997;

(4) Mojave, approved January 8, 1997;

(5) Sacramento, approved January 8, 1997;

(6) South Coast, approved April 10, 2000;

(7) Ventura, approved January 8, 1997.

(b) Approval of the motor vehicle emissions budgets for the following ozone maintenance SIP will apply for transportation conformity purposes only until new budgets based on updated planning data and models have been submitted and EPA has found the budgets to be adequate for conformity purposes.

(1) Monterey, approved January 17, 1997.

(2) [Reserved].

(c) Approval of the motor vehicle emissions budgets for the following carbon monoxide maintenance SIPs will apply for transportation conformity purposes only until new budgets based on updated planning data and models have been submitted and EPA has found the budgets to be adequate for conformity purposes.

(1) Bakersfield, approved March 31, 1998;

(2) Chico, approved March 31, 1998;

(3) Fresno, approved March 31, 1998;

(4) Lake Tahoe-North, approved March 31, 1998;

(5) Lake Tahoe-South, approved March 31, 1998;

(6) Modesto, approved March 31, 1998;

(7) Sacramento, approved March 31, 1998;

(8) San Diego, approved March 31, 1998;

(9) San Francisco Bay Area, approved March 31, 1998;

(10) Stockton, approved March 31, 1998.

(d) Approval of the motor vehicle emissions budgets for the following nitrogen dioxide maintenance SIP will apply for transportation conformity purposes only until new budgets based on updated planning data and models have been submitted and EPA has found the budgets to be adequate for conformity purposes.

This document corrects errors that appeared in the final rule with comment period published in the Federal Register on November 1, 2002 entitled “Changes to the Hospital Outpatient Prospective Payment System and Calendar Year 2003 Payment Rates; and Changes to Payment Suspension for Unfiled Cost Reports.” This notice is a supplement to the November 1, 2002 final rule with comment period.

EFFECTIVE DATE:

November 1, 2002.

FOR FURTHER INFORMATION CONTACT:

Anita Heygster, (410) 786-0378.

SUPPLEMENTARY INFORMATION:I. Background

In FR Doc. 02-27548 of November 1, 2002 (67 FR 66718), we omitted addresses and instructions for submitting public comments and language that justified waiving notice and comment procedures for two specific policies. This notice is a supplement to the November 1, 2002 final rule with comment period, and sets forth our rationale for waiving the notice and comment period for certain provisions. More detail regarding this correction is provided in the Correction of Errors section below. The provisions in this correction notice are effective as if they had been included in the document published November 1, 2002. Accordingly, the corrections are effective January 1, 2003.

II. Correction of Errors

In FR Doc. 02-27548 of November 1, 2002 (67 FR 66719), make the following corrections:

1. On page 66718, at the top of the second column, immediately preceding the heading FOR FURTHER INFORMATION CONTACT, insert the following language:

“ADDRESSES: In commenting, please refer to file code CMS-1206-FC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission. Mail written comments (one original and two copies) to the following address only: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1206-FC, P.O. Box 8018, Baltimore, MD 21244-8018.

Please allow sufficient time for mailed comments to be timely received in the event of delivery delays.

If you prefer, you may deliver (by hand or courier) your written comments (one original and two copies) to one of the following addresses: Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201, or Room C5-14-03, 7500 Security Boulevard, Baltimore, MD 21244-1850. (Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.) Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and could be considered late.

Inspection of Public Comments: Comments received timely will be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, call (410) 786-7197.”

2. On page 66813, at the end of the first column, insert the following section:

“XVI. Waiver of Proposed Rulemaking

We ordinarily publish a notice of proposed rulemaking in the Federal Register and invite public comment on the proposed rule. The notice of proposed rulemaking includes a reference to the legal authority under which the rule is proposed, and the terms and substances of the proposed rule or a description of the subjects and issues involved. This procedure can be waived, however, if an agency finds good cause that a notice-and-comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporates a statement of the finding and its reasons in the rule issued.

While this final rule with comment finalizes provisions set forth in the August 9, 2002 proposed rule (67 FR 52092), the following policies were not included in that rule and are subject to comment. We are issuing APC assignments for codes that are new for 2003 as final with comment because we believe that it is necessary to avoid harm to hospitals and beneficiaries and because it is necessary to implement the requirements of the HIPAA when it becomes effective for all providers and payers in October 2003. Specifically, APC assignments for new codes are necessary for hospitals to be able to report the services they furnish and to be properly paid for them. To do otherwise would leave hospitals no other option but to report incorrect codes and to receive incorrect payments for the services that should be reported under the new codes. New HCPCS codes for the forthcoming year are not announced by the American Medical Association (with regard to the current procedural terminology, CPT portion of HCPCS) and by CMS (with regard to the alpha numeric portion of HCPCS) until September of each year for the forthcoming year. Hence, CMS is not able to include most new codes and proposed APC assignments in its annual notice of proposed rulemaking for OPPS. Where possible, we do include mid year G codes and proposed codes in the proposed rule but these represent a very limited subset of the many changes that occur in HCPCS coding each year.

Similarly, recognition of new codes for 2003 is necessary for both CMS and hospitals to comply with the requirements of HIPAA that will require all providers to use HCPCS codes no later than October 16, 2003. For CMS to not recognize HCPCS codes that are new for 2003 until 2004 would be to violate these requirements.

We are issuing the change to our policy regarding influenza and pneumococcal pneumonia vaccines as final with comment because we believe that this change in policy is necessary to protect the health of the Medicare population. As we discussed previously this notice is a supplement to the November 1, 2002 final rule with comment period. In this preamble, we have had considerable discussions in which we have been advised by providers that OPPS payment was insufficient for them to be able to guarantee that they would be able to offer these important vaccines to the Medicare patients they treat. They cited the timing of updates to the OPPS (which go into effect in January, 9 months before the start of the flu and PPV immunization season) and the volatility of the costs as a result of irregular supplies as their main concern. Each year a new vaccine is produced; the cost of the vaccine is frequently higher than the previous year's cost. Thus from September through December, providers paid under the OPPS for administering flu vaccines (which include home health agencies, which immunize many beneficiaries, homebound and otherwise) do not receive benefit of the update that will occur the following January. We believe that paying for influenza and PPV vaccines based on reasonable cost is the best way we can ensure that we maximize the potential for providers to secure the vaccine they need to immunize the Medicare population and that therefore, implementing this change as a final policy with public comment is justified.

Therefore, we find good cause to waive notice and comment procedures and to implement these policies as final with a comment period. We are providing a 60-day public comment period.

III. Waiver of Proposed Rulemaking

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect. We can waive this procedure, however, if we find good cause that notice and comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporate a statement of the finding and the reasons for it into the rule issued.

For the two policies addressed above in Section II., Correction of Errors, and for the reasons set forth in that section, we find it unnecessary to undertake notice and comment rulemaking. Therefore, we find good cause to waive notice and comment procedures.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Closure.

SUMMARY:

NMFS announces that the black sea bass commercial quota available in the Quarter 4 period to the coastal states from Maine through North Carolina has been harvested. Commercial vessels may not land black sea bass in these states north of 35°15.3' N. lat. for the remainder of the 2002 Quarter 4 quota period (through December 31, 2002). Regulations governing the black sea bass fishery require publication of this notification to advise the coastal states from Maine through North Carolina that the quota has been harvested and to advise vessel permit holders and dealer permit holders that no commercial quota is available for landing black sea bass in these states north of 35°15.3' N. lat.

DATES:

Effective 0001 hrs local time, November 20, 2002, through 2400 hrs local time, December 31, 2002.

FOR FURTHER INFORMATION CONTACT:

Richard A. Pearson, Fishery Policy Analyst, at (978) 281-9279.

SUPPLEMENTARY INFORMATION:

Regulations governing the black sea bass fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is allocated into four quota periods, based upon percentages of the annual quota. The Quarter 4 (October through December) commercial quota is distributed to the coastal states from Maine through North Carolina. The process to set the annual commercial quota is described in § 648.140.

The total commercial quota for black sea bass for the 2002 calendar year was initially set at 3,332,000 lb (1,511,370 kg) and then adjusted downward to 3,294,758 lb (1,494,477 kg) to account for research quota set-asides (66 FR 66351; December 26, 2001). The Quarter 4 period quota, which is equal to 12.33 percent of the annual commercial quota, is 651,374 lb (295,458 kg). The quota did not have to be adjusted to compensate for 2001 Quarter 4 landings in excess of the 2001 Quarter 4 quota. However, the 2002 Quarter 4 commercial quota was increased by 4,900 lb (2,223 kg), due to the disapproval of a research project for which quota had been set aside (67 FR 56229, September 3, 2002). The final adjusted 2002 Quarter 4 quota is 656,274 lb (297,681 kg).

The Regional Administrator, Northeast Region, NMFS (Regional Administrator) monitors the commercial black sea bass quota for each quota period using dealer reports, state data, and other available information to determine when the commercial quota has been harvested. NMFS is required to publish a notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the black sea bass commercial quota has been harvested and no commercial quota is available for landing black sea bass for the remainder of the Quarter 4 period, north of 35°15.3' N. lat. The Regional Administrator has determined, based upon dealer reports and other available information, that the black sea bass commercial quota for the 2002 Quarter 4 period has been harvested.

The regulations at § 648.4(b) provide that Federal black sea bass moratorium permit holders agree, as a condition of the permit, not to land black sea bass in any state after NMFS has published notification in the Federal Register stating that the commercial quota for the period has been harvested and that no commercial quota for black sea bass is available. The Regional Administrator has determined that the Quarter 4 period for black sea bass no longer has commercial quota available. Therefore, effective 0001 hrs local time, November 20, 2002, further landings of black sea bass in coastal states from Maine through North Carolina, north of 35°15.3' N. lat., by vessels holding commercial Federal fisheries permits, are prohibited through December 31, 2002. The 2003 Quarter 1 period for commercial black sea bass harvest will open on January 1, 2003. Effective November 20, 2002, federally permitted dealers are also advised that they may not purchase black sea bass from federally permitted black sea bass moratorium permit holders who land in coastal states from Maine through North Carolina, north of 35°15.3' N. lat., for the remainder of the Quarter 4 period (through December 31, 2002).

The regulations at § 648.4(b) also provide that, if the commercial black sea bass quota for a period is harvested and the coast is closed to the possession of black sea bass north of 35°15.3' N. lat., any vessel owners who hold valid commercial permits for both the black sea bass and the NMFS Southeast Region snapper-grouper fisheries may surrender their black sea bass moratorium permit by certified mail addressed to the Regional Administrator (see table 1 at § 600.502) and fish pursuant to their snapper-grouper permit, as long as fishing is conducted exclusively in waters, and landings are made, south of 35°15.3' N. lat. A moratorium permit for the black sea bass fishery that is voluntarily relinquished or surrendered will be reissued upon the receipt of the vessel owner's written request after a minimum period of 6 months from the date of cancellation.

Classification

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

This action extends the comment period for an NPRM that was published on September 25, 2002. In that document, the FAA proposed requirements to establish flight simulation device qualification requirements in a new part. This extension is a result of requests from Air Transport Association and Covington & Burling, on behalf of CAE.

DATES:

Comments must be received on or before February 24, 2003.

ADDRESSES:

Comments on this document should be mailed or delivered, in duplicate, to: U.S. Department of Transportation Dockets, Docket No. FAA-2002-12461, 400 Seventh Street, SW., Room Plaza 401, Washington, DC 20590. Comments may be filed and examined in Room Plaza 401 between 10 a.m. and 5 p.m. weekdays, except Federal holidays. Comments also may be sent electronically to the Dockets Management System (DMS) at the following Internet address: http://dms.dot.gov at any time. Commenters who wish to file comments electronically should follow the instructions on the DMS Web site.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in the NPRM, Notice No. 02-11. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also review the docket using the Internet at the web address in the ADDRESSES section.

Before acting on the proposals in the NPRM, Notice No. 02-11, we will consider all comments we receive on or before the closing date. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change the proposals in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.

Background

On September 25, 2002, the FAA published NPRM, Notice No. 02-11, Flight Simulation Device Initial and Continuing Qualification and Use (67 FR 60284). Comments to that document were to be received on or before December 24, 2002.

By letter dated October 16, 2002, the Air Transport Association requested that the FAA extend the comment period for Notice No. 02-11 until March 31, 2003. In addition, by letter dated October 24, 2002, Covington & Burling, on behalf of CAE (a flight simulation manufacturer), requested that the FAA extend the comment period for Notice No. 02-11 until March 31, 2003. The commenters noted that the NPRM was large and that a 90-day comment ending December 24, 2002, was not sufficient in order to make substantive and comprehensive comments.

The FAA agrees that additional time for comments may be needed because of the timing of the 90-day comment period. However, the FAA believes that a 90-day extension would be excessive. Therefore, the FAA believes an additional 60 days would be adequate for these entities to provide comment to Notice No. 02-11.

Extension of Comment Period

In accordance with § 11.47 of Title 14, Code of Federal Regulations, the FAA has reviewed the requests made by Air Transport Association and Covington & Burling, on behalf of CAE, for extension of the comment period to Notice No. 02-11. The FAA has found good cause for extending the comment period for 60 days. The FAA also has determined that extension of the comment period is consistent with the public interest.

Accordingly, the comment period for Notice No. 02-11 is extended until February 24, 2003.

This document proposes to adopt a new airworthiness directive (AD) that would apply to certain Robert E. Rust (R.E. Rust) Models DeHavilland DH.C1 Chipmunk 21, 22, and 22A airplanes. This proposed AD would require you to inspect the fuselage to determine if a steel fuselage center-section tie bar fitted with bushings in the end lug bolt holes is installed. If this bushed steel fuselage center-section tie bar is installed, this proposed AD would decrease the safe life limit. This proposed AD is the result of reports that certain replacement steel fuselage center-section tie bars installed on the affected airplanes could fail before the originally published safe life limit. The actions specified by this proposed AD are intended to prevent early failure of these bushed steel fuselage center-section tie bars, which could result in reduced structural integrity of the wings. Such a condition could lead to loss of control of the airplane.

DATES:

The Federal Aviation Administration (FAA) must receive any comments on this proposed rule on or before January 22, 2003.

ADDRESSES:

Submit comments to FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-CE-63-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. You may view any comments at this location between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. You may also send comments electronically to the following address: 9-ACE-7-Docket@faa.gov.Comments sent electronically must contain “Docket No. 2000-CE-63-AD” in the subject line. If you send comments electronically as attached electronic files, the files must be formatted in Microsoft Word 97 for Windows or ASCII text.

You may get service information that applies to this proposed AD from DeHavilland Support Limited, Duxford Airfield, Bldg. 213, Cambridgeshire, CB2 4QR, United Kingdom, telephone: +44 1223 830090, facsimile: +44 1223 830085, e-mail: info@dhsupport.com. You may also view this information at the Rules Docket at the address above.

SUPPLEMENTARY INFORMATION:Comments Invited How Do I Comment on This Proposed AD?

The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES. We will consider all comments received on or before the closing date. We may amend this proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this proposed AD action and determining whether we need to take additional rulemaking action.

Are There Any Specific Portions of This Proposed AD I Should Pay Attention to?

The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each contact we have with the public that concerns the substantive parts of this proposed AD.

How Can I Be Sure FAA Receives My Comment?

If you want FAA to acknowledge the receipt of your mailed comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2000-CE-63-AD.” We will date stamp and mail the postcard back to you.

Discussion What Events Have Caused This Proposed AD?

The FAA has received reports that an unsafe condition may exist on certain R.E. Rust Models DeHavilland DH.C1 Chipmunk 21, 22, and 22A airplanes. After a review of several of these airplanes, we have determined that steel fuselage center-section tie bars, part number RD.C1.FS.107, are being installed as replacements parts. Some of these part numbers have been fitted with bushings in the end lugs to cover scored or oversized holes.

The use of bushings in the end of the lugs on these parts severely reduces the safe life limit. The original safe life limit established for the steel fuselage center-section tie bar was 30,000 fatigue hours. Fatigue hours are hours time-in-service multiplied by the role factor (operational use).

What Are the Consequences If the Condition Is Not Corrected?

This condition, if not corrected, could result in failure of the steel fuselage center-section tie bar. Such failure could lead to loss of control of the airplane.

These Technical News Sheets include procedures for inspecting the steel fuselage center-section tie bar to determine if the bolt holes in the lug have bushings and procedures for calculating fatigue hours.

The FAA's Determination and an Explanation of the Provisions of this Proposed AD What Has FAA Decided?

After examining the circumstances and reviewing all available information related to the incidents described above, we have determined that:

—The unsafe condition referenced in this document exists or could develop on other R.E. Rust Models DeHavilland DH.C1 Chipmunk 21, 22, and 22A airplanes of the same type design; —The actions specified in the previously-referenced service information should be accomplished on the affected airplanes; and —AD action should be taken in order to correct this unsafe condition. What Would This Proposed AD Require?

This proposed AD would require you to check the airplane logbook to determine if a steel fuselage center-section tie bar, part number RD.C1.FS.107, is installed on the airplane. If this part number is installed, this proposed AD would require you to inspect the end lugs to determine if bushings are installed in the bolt holes. If bushings are present, this proposed AD would also reduce the safe life of that part from 30,000 fatigue hours to 16, 000 fatigue hours.

Cost Impact How Many Airplanes Would This Proposed AD Impact?

We estimate that this proposed AD affects 54 airplanes in the U.S. registry.

What Would Be the Cost Impact of This Proposed AD on Owners/Operators of the Affected Airplanes?

We estimate the following costs to accomplish the proposed inspection:

We estimate the following costs to accomplish any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need such replacement:

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposed rule would not have federalism implications under Executive Order 13132.

Would This Proposed AD Involve a Significant Rule or Regulatory Action?

For the reasons discussed above, I certify that this proposed action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action has been placed in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

PART 39—AIRWORTHINESS DIRECTIVES

1. The authority citation for part 39 continues to read as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]

2. FAA amends § 39.13 by adding a new airworthiness directive (AD) to read as follows:

Robert E. Rust: Docket No. 2000-CE-63-AD.

(a) What airplanes are affected by this AD? This AD affects R.E. Rust Models DeHavilland DH.C1 Chipmunk 21, 22, and 22A airplanes, serial numbers C1-001 through C1-1014, that are type certificated in any category.

Note 1:

We recommend all owners/operators of DeHavilland DH.C1 Chipmunk 21, 22, and 22A airplanes, serial numbers C1-001 through C1-1014, with experimental airworthiness certificates comply with the actions required in this AD.

(b) Who must comply with this AD? Anyone who wishes to operate any of the airplanes identified in paragraph (a) of this AD must comply with this AD.

(c) What problem does this AD address? The actions specified by this AD are intended to prevent failure of the steel fuselage center-section tie bar prior to the originally published safe life, which could result in reduced structural integrity of the wings. Such a condition could lead to loss of control of the airplane. Steel fuselage center-section tie bars fitted with bushings in the end lug bolt holes have a reduced safe life of 16,000 fatigue hours.

(d) What actions must I accomplish to address this problem? To address this problem, you must accomplish the following:

Actions Compliance Procedures (1) Check the airplane logbook to determine if a steel fuselage center-section tie bar, part number (P/N) RD.C1.FS.107, is installed. Initial steel tie bar fitments were done under cover of Repair Drawings R.C1.FS.191 and RD.C1.FS.106. Later these drawings were included in Modification H.288 so fitment may be logged under either Upon accumulating 16,000 fatigue hours or within the next 100 hours time-in-service (TIS) after the effective date of this AD, whichever occurs later The owner/operator holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may check the airplane logbook. Calculate fatigue hours by multiplying the TIS by the role factor in accordance with British Aerospace Mandatory Technical News Sheet Series: Chipmunk (C1), No. 138, Issue: 5, dated August 1, 1985. (2) If, by checking the airplane logbook, you can positively determine that a steel fuselage center-section tie bar, P/N RD.C1.FS.107, is not installed: (i) you must make an entry into the aircraft records that shows compliance with paragraphs (d)(1) and (d)(2) of this AD in accordance with section 43.9 of the Federal Aviation Regulations (14 CFR 43.9); and (ii) continue to comply with the published life limits of the installed tie bar. Not applicable The owner/operator holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may check the airplane logbook. (3) If, by checking the airplane logbook, you determine that a steel fuselage center-section tie bar, P/N RD.C1.FS.107, is installed, or cannot positively show that one is not installed: (i) inspect the lug bolt holes to determine if bushings have been installed; (ii) if bushings have been installed, the safe life limit for that part is now 16,000 fatigue hours; (iii) if bushing have not been installed, the safe life limit for that part remains at 30,000 fatigue hours; and (iv) make an entry into the aircraft records that shows compliance with this portion of the AD in accordance with section 43.9 of the Federal Aviation Regulations (14 CFR 43.9). Prior to further flight after the logbook check required in paragraph (d)(1) of this AD In accordance with British Aerospace Mandatory Technical News Sheet No. 175, Issue 1, dated August 1, 1985. (4) The following are the safe life limit for steel fuselage center-section tie bars, P/N RD.C1.FS.107: (i) If fitted with bushings in the end lug bolt holes: 16,000 fatigue hours; and (ii) If not fitted with bushings in the end lug bolt holes: 30,000 fatigue hours. As of the effective date of this AD Not applicable.

(e) Can I comply with this AD in any other way? You may use an alternative method of compliance or adjust the compliance time if:

(1) Your alternative method of compliance provides an equivalent level of safety; and

(2) The Manager, Atlanta Aircraft Certification Office (ACO), approves your alternative. Submit your request through an FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Atlanta ACO.

Note:

This AD applies to each airplane identified in paragraph (a) of this AD, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if you have not eliminated the unsafe condition, specific actions you propose to address it.

(g) What if I need to fly the airplane to another location to comply with this AD? The FAA can issue a special flight permit under §§ sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate your airplane to a location where you can accomplish the requirements of this AD.

(h) How do I get copies of the documents referenced in this AD? You may get copies of the documents referenced in this AD from DeHavilland Support Limited, Duxford Airfield, Bldg. 213, Cambridgeshire, CB2 4QR, United Kingdom, telephone: +44 1223 830090, facsimile: +44 1223 830085, e-mail: info@dhsupport.com. You may view these documents at FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106.

The Federal Aviation Administration (FAA) proposes to adopt a new airworthiness directive (AD) that is applicable to Pratt & Whitney JT8D-1, -1A, -1B, -7, -7A, -7B, -9, -9A, -11, -15, -15A, -17, -17A, -17R, and -17AR turbofan engines. This proposal would require removal from service of certain part number (P/N) 3rd-4th and 4th-5th stage compressor rotor spacer assemblies and incorporation of a new tierod retention configuration. This proposal is prompted by two reports of uncontained failure of JT8D turbofan engines, caused by turbine rotor overspeed resulting from first and second stage fan section separation from the low pressure compressor (LPC). The actions specified by the proposed AD are intended to prevent first and second stage fan section separation from the LPC, resulting in turbine rotor overspeed, uncontained engine failure, and damage to the airplane.

DATES:

Comments must be received by January 14, 2003.

ADDRESSES:

Submit comments in triplicate to the Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2002-NE-27-AD, 12 New England Executive Park, Burlington, MA 01803-5299. Comments may be inspected at this location, by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. Comments may also be sent via the Internet using the following address: “9-ane-adcomment@faa.gov”. Comments sent via the Internet must contain the docket number in the subject line.

The service information referenced in the proposed rule may be obtained from Pratt & Whitney, 400 Main St., East Hartford, CT 06108; telephone (860) 565-8770; fax (860) 565-4503. This information may be examined, by appointment, at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA.

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NE-27-AD.” The postcard will be date stamped and returned to the commenter.

Availability of NPRM's

Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2002-NE-27-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

Discussion

The FAA has received two reports of turbine rotor overspeed resulting in uncontained engine failure on JT8D turbofan engines. The overspeeds resulted from separation of the first and second stage fan section from the rear stages of the LPC. The separations resulted from LPC tierod fractures, which were caused by fretting due to spacer-to-disk snap diameter looseness. The manufacturer has determined that incorporating a tighter snap diameter fit by installing new design or modified parts and incorporating increased sleeve-to-tierod clearances will reduce the number of tierod fractures due to fatigue initiated by fretting. Installation of the new tierod retention configuration will reduce the likelihood of a single tierod fracture damaging the remaining tierods. This condition, if not corrected, could result in a first and second stage fan section separation from the LPC, uncontained engine failure, and damage to the airplane.

Manufacturer's Service Information

The FAA has reviewed and approved the technical contents of Pratt & Whitney Service Bulletin (SB) No. JT8D 6429, dated August 23, 2002, that describes procedures for incorporating a new tierod retention configuration. Pratt & Whitney SB's No. 5409, No. SB 5716, and No. SB No. 5734 are referenced in this proposal because they provide information on modification of the parts requiring removal to make them serviceable.

FAA's Determination of an Unsafe Condition and Proposed Actions

Since an unsafe condition has been identified that is likely to exist or develop on other JT8D-1, -1A, -1B, -7, -7A, -7B, -9, -9A, -11, -15, -15A, -17, -17A, -17R, and -17AR turbofan engines of the same type design that are used on airplanes registered in the United States, the proposed AD would require at the next accessibility:

• Removing from service 4th-5th stage compressor rotor spacer assemblies P/N 628778 that do not incorporate SB 5409 and replacement with a serviceable part.

• Incorporating a new tierod retention configuration in accordance with the service bulletin described previously.

Economic Analysis

There are approximately 4,180 engines of the affected design in the worldwide fleet. The FAA estimates that 1,800 engines installed on aircraft of U.S. registry would be affected by this proposed AD. The FAA also estimates that it would take approximately 41 work hours per engine to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $3,600 per engine. Based on these figures, the total cost of the proposed AD to U.S. operators is estimated to be $10,908,000.

Regulatory Analysis

This proposed rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposed rule.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

PART 39—AIRWORTHINESS DIRECTIVES

1. The authority citation for part 39 continues to read as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701.

§ 39.13[Amended]

2. Section 39.13 is amended by adding the following new airworthiness directive:

This airworthiness directive (AD) applies to each engine identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For engines that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (d) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.

Compliance: Compliance with this AD is required as indicated, unless already done.

To prevent first and second stage fan section separation from the low pressure compressor (LPC), resulting in turbine rotor overspeed, uncontained engine failure, and damage to the airplane, do the following:

(b) After the effective date of this AD, do not install 3rd-4th or 4th-5th stage compressor rotor spacer assemblies listed in paragraphs (a)(1), (a)(2), and (a)(3) of this AD into any engine.

Definition

(c) For the purpose of this AD, accessibility means removal of the LPC from the engine and disassembly that provides piece-part exposure to the parts listed in paragraph (a) of this AD.

Alternative Methods of Compliance

(d) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Engine Certification Office (ECO). Operators must submit their request through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, ECO.

Note 3:

Information concerning the existence of approved alternative methods of compliance with this airworthiness directive, if any, may be obtained from the ECO.

Special Flight Permits

(e) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be done.

This document proposes to adopt a new airworthiness directive (AD) that would apply to all SOCATA—Groupe AEROSPATIALE (Socata) Models TB 9, TB 10, TB 20, TB 21, and TB 200 airplanes. This proposed AD would require you to inspect the aileron control gimbal joint for correct alignment and correct operation, and replace any misaligned or defective gimbal joint. This proposed AD is the result of mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for France. The actions specified by this proposed AD are intended to prevent failure of the aileron control gimbal joint. Such failure could lead to loss of control of the airplane.

DATES:

The Federal Aviation Administration (FAA) must receive any comments on this proposed rule on or before January 3, 2003.

ADDRESSES:

Submit comments to FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2002-CE-43-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. You may view any comments at this location between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. You may also send comments electronically to the following address: 9-ACE-7-Docket@faa.gov. Comments sent 1 electronically must contain “Docket No. 2002-CE-43-AD” in the subject line. If you send comments electronically as attached electronic files, the files must be formatted in Microsoft Word 97 for Windows or ASCII text.

SUPPLEMENTARY INFORMATION:Comments Invited How Do I Comment on This Proposed AD?

The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES. We will consider all comments received on or before the closing date. We may amend this proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this proposed AD action and determining whether we need to take additional rulemaking action.

Are There Any Specific Portions of This Proposed AD I Should Pay Attention To?

The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each contact we have with the public that concerns the substantive parts of this proposed AD.

How Can I Be Sure FAA Receives My Comment?

If you want FAA to acknowledge the receipt of your mailed comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2002-CE-43-AD.” We will date stamp and mail the postcard back to you.

DiscussionWhat Events Have Caused This Proposed AD?

The Direction Generale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified FAA that an unsafe condition may exist on all Socata Models TB 9, TB 10, TB 20, TB 21, and TB 200 airplanes. The DGAC reported an incident involving a Model TB 9 airplane. During flight, the pilot experienced loss of aileron control. Loss of aileron control resulted because the gimbal joint became disconnected from the aileron.

The gimbal joint became disconnected from the aileron because the safety pin broke. The cause of the safety pin breaking is being investigated by the manufacturer. The result of the investigation may result in a future design change.

What Are the Consequences if the Condition Is Not Corrected?

This condition, if not corrected, could result in failure of the aileron control gimbal joint. Such failure could lead to loss of control of the airplane.

The DGAC classified this service bulletin as mandatory and issued French AD 2002-225(A), dated May 15, 2002, in order to ensure the continued airworthiness of these airplanes in France.

Was This in Accordance With the Bilateral Airworthiness Agreement?

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.

Pursuant to this bilateral airworthiness agreement, the DGAC has kept FAA informed of the situation described above.

The FAA's Determination and an Explanation of the Provisions of This Proposed AD What Has FAA Decided?

The FAA has examined the findings of the DGAC; reviewed all available information, including the service information referenced above; and determined that:

—The unsafe condition referenced in this document exists or could develop on other Socata Models TB 9, TB 10, TB 20, TB 21, and TB 200 airplanes of the same type design that are on the U.S. registry;—The actions specified in the previously-referenced service information should be accomplished on the affected airplanes; and—AD action should be taken in order to correct this unsafe condition.What Would This Proposed AD Require?

This proposed AD would require you to incorporate the actions in the previously-referenced service bulletin.

Is There a Modification I Can Incorporate Instead of Repetitively Inspecting the Aileron Control Gimbal Joint?

The FAA has determined that long-term continued operational safety would be better assured by design changes that remove the source of the problem rather than by repetitive inspections or other special procedures. With this in mind, FAA will continue to work with Socata in collecting information and in performing fatigue analysis to determine whether a future design change may be necessary.

Cost ImpactHow Many Airplanes Would This Proposed AD Impact?

We estimate that this proposed AD affects 346 airplanes in the U.S. registry.

What Would be the Cost Impact of this Proposed AD on Owners/Operators of the Affected Airplanes?

We estimate the following costs to accomplish the proposed initial inspection:

The FAA has no method of determining the number of repetitive inspections each owner/operator would incur over the life of each of the affected airplanes so the cost impact is based on the initial inspection.

We estimate the following costs to accomplish any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need such replacement:

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposed rule would not have federalism implications under Executive Order 13132.

Would This Proposed AD Involve a Significant Rule or Regulatory Action?

For the reasons discussed above, I certify that this proposed action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action has been placed in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

PART 39—AIRWORTHINESS DIRECTIVES

1. The authority citation for part 39 continues to read as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]

2. FAA amends § 39.13 by adding a new airworthiness directive (AD) to read as follows:

SOCATA—Groupe AEROSPATIALE: Docket No. 2002-CE-43-AD

(a) What airplanes are affected by this AD? This AD affects Models TB 9, TB 10, TB 20, TB 21, and TB 200 airplanes, all serial numbers, that are certificated in any category.

(b) Who must comply with this AD? Anyone who wishes to operate any of the airplanes identified in paragraph (a) of this AD must comply with this AD.

(c) What problem does this AD address? The actions specified by this AD are intended to prevent failure of the aileron control gimbal joint. Such failure could lead to loss of control of the airplane.

(d) What actions must I accomplish to address this problem? To address this problem, you must accomplish the following:

Actions Compliance Procedures (1) Inspect the aileron control gimbal joint for correct alignment and correct operationUpon accumulating 300 hours time-in-service (TIS) on the aileron control gimbal joint or within the next 30 hours TIS after the effective date of this AD, whichever occurs later. Repetitively inspect thereafter at intervals not to exceed 100 hours TISIn accordance with the Accomplishment Instructions in Socata TB Aircraft Mandatory Service Bulletin SB 10-130 27, dated April 2002. (2) Replace misaligned or defective gimbal joints during any inspection required in paragraph (d)(1) of this ADPrior to further flight after the inspection where a misaligned or defective gimbal joint was found. The inspection requirements of paragraph (d)(1) start over after each replacementIn accordance with the Accomplishment Instructions in Socata TB Aircraft Mandatory Service Bulletin SB 10-130 27, dated April 2002, and the applicable maintenance manual.

(e) Can I comply with this AD in any other way? You may use an alternative method of compliance or adjust the compliance time if:

(1) Your alternative method of compliance provides an equivalent level of safety; and

(2) The Manager, Standards Office, Small Airplane Directorate, approves your alternative. Submit your request through an FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Standards Office.

Note 1:

This AD applies to each airplane identified in paragraph (a) of this AD, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if you have not eliminated the unsafe condition, specific actions you propose to address it.

(g) What if I need to fly the airplane to another location to comply with this AD? The FAA can issue a special flight permit under §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate your airplane to a location where you can accomplish the requirements of this AD.

This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. This proposal would require installing speedbrake limitation placards in the flight compartment; and revising the Limitations Section of the Airplane Flight Manual to ensure the flightcrew is advised not to extend the speedbrake lever beyond the flight detent. For certain airplanes, this proposal would require modifying the elevator and elevator tab assembly. This action is necessary to prevent severe vibration of the elevator and elevator tab assembly, which could result in severe damage to the horizontal stabilizer, followed by possible loss of the elevator tab and consequent loss of controllability of the airplane. This action is intended to address the identified unsafe condition.

DATES:

Comments must be received by December 30, 2002.

ADDRESSES:

Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-240-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2002-NM-240-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.

The service information referenced in the proposed rule may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-240-AD.” The postcard will be date stamped and returned to the commenter.

The FAA has received several reports of excessive in-flight vibrations of the elevator and elevator tab on certain Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. The FAA responded to these reports by issuing several rulemaking actions (listed below). These actions were identified as interim action until a modification for the elevator and elevator tab assemblies was developed, approved, and available. The intent of such a modification is to reduce the reliance on inspections to assure the continued airworthiness of the affected airplanes and to relieve certain significant operational restrictions imposed on the affected airplanes. The manufacturer now has developed such a modification, and the FAA has determined that further rulemaking action is indeed necessary; this proposed AD follows from that determination.

The elevator and elevator tab are susceptible to excessive vibration and, under certain conditions, limit-cycle flutter. These vibration events have been attributed to loose or missing components, excessive wear, or excessive freeplay of the tab. Elevator tab vibrations following deployment of the speedbrakes can result in wear to the elevator tab hinges and components of the elevator tab control system. Such wear can cause the elevator tab assemblies to become loose. Continued exposure to spoiler buffeting can cause excessive wear to the elevator tab components. Continued operation of these airplanes in such conditions could result in severe damage to the horizontal stabilizer, followed by possible loss of the elevator tab and consequent loss of controllability of the airplane.

Terminating Action for Related Rulemaking

The requirements of this AD are intended to be terminating action for the following ADs:

• AD 99-15-09, amendment 39-11229 (64 FR 40514, July 27, 1999), was issued on July 13, 1999, and is applicable to certain Boeing Model 737-600 series airplanes. That AD requires revising the Airplane Flight Manual (AFM) to prohibit operation of the airplane under certain conditions; repetitive inspections of the tab mast fittings of the elevator tab assemblies to detect cracking; an elevator tab freeplay check; and corrective actions, if necessary. That AD also requires installing an additional fastener on the elevator tab mast fitting, which terminates the AFM revision and extends certain repetitive inspections. That AD also requires replacement of the elevator tab mast fitting with a new, improved fitting, which terminates the required actions.

• AD 99-18-01, amendment 39-11267 (64 FR 46259, August 25, 1999), was issued on August 18, 1999, and is applicable to certain Boeing Model 737-700 and -800 series airplanes. That AD supersedes AD 99-13-51, amendment 39-11213 (64 FR 34976, June 30, 1999), to continue to require revising the AFM to prohibit operation of the airplane under certain conditions; repetitive inspections of the tab mast fitting of the elevator tab assemblies to detect cracking; an elevator tab freeplay check; and corrective actions, if necessary. AD 99-18-01 also continues to provide for optional terminating action only for certain repetitive inspections; and installing an additional fastener on the elevator tab mast fitting, which terminates the AFM revision and extends certain repetitive inspection intervals.

• AD 2001-08-09, amendment 39-12186 (66 FR 20194, April 20, 2001), was issued on April 13, 2001, and is applicable to certain Boeing Model 737-600, -700, -800, and -700C series airplanes. That AD supersedes AD 2001-04-08, amendment 39-12127 (66 FR 13229, March 5, 2001), to continue to require initial and repetitive inspections of the elevator tab assembly to detect any damage or discrepancy; and corrective actions, if necessary. AD 2001-08-09 also clarifies the applicability and certain requirements of AD 2001-04-08.

• AD 2001-09-51, amendment 39-12251 (66 FR 31141, June 11, 2001), was issued on May 25, 2001, and is applicable to certain Boeing Model 737-600,-700,-700C, and-800 series airplanes. That AD requires inspection of the small jam nut on the elevator tab control rods to detect inspection putty and to determine its condition; a torque check of the small and large jam nuts on the tab control rod, if necessary; and corrective actions, as applicable. For certain airplanes, that AD also requires a one-time inspection for torque of the small and large jam nuts on the tab control rods; and corrective actions, as applicable.

• AD 2001-12-51, amendment 39-12294 (66 FR 34098, June 27, 2001), was issued on June 20, 2001, and is applicable to all Boeing Model 737-800 series airplanes. That AD requires revising the AFM to prohibit operating the airplane at speeds in excess of 300 knots indicated airspeed (KIAS) with speedbrakes extended. That AD also provides for optional terminating action for the AFM revision.

• AD 2001-14-05, amendment 39-12315 (66 FR 36145, July 12, 2001), was issued on July 2, 2001, and is applicable to all Boeing Model 737-600,-700,-700C, and-800 series airplanes. That AD prohibits installation of repairs of the elevator tab using previously approved repair procedures.

• AD 2002-08-52, amendment 39-12727 (67 FR 20626, April 26, 2002), was issued on April 19, 2002, and is applicable to all Boeing Model 737-600,-700, and-700C series airplanes. That AD requires revising the AFM to ensure that the flightcrew is advised of the potential hazard associated with extending the speedbrakes at speeds in excess of 300 KIAS. That AD also provides for optional modification or retrofit of the elevator tab assembly.

• AD 2002-08-20, amendment 39-12732 (67 FR 20628, April 26, 2002), was issued on April 19, 2002, and is applicable to all Boeing Model 737-600,-700,-700C, and 800 series airplanes. That AD requires inspecting the airplane following any suspected limit cycle oscillation (LCO) of the elevator tab; and revising the AFM to limit airspeeds under certain conditions and to provide the flight crew with information regarding elevator tab LCO. That AD also requires repetitive cleaning of the elevator tab and a one-time cleaning of the elevator balance bays. That AD provides for the option to repetitively clean the elevator tab and balance bays following every deicing/anti-icing of the horizontal stabilizer, which would temporarily allow airspeeds exceeding those limited by the AFM revision. For certain airplanes, that AD requires trimming the elevator balance panel seals, which will terminate the optional repetitive cleaning procedures for the balance bays.

Related AD

AD 2001-23-01, amendment 39-12498 (66 FR 56989, November 14, 2001), was issued on November 5, 2001, and is applicable to certain Boeing Model 737-600,-700, and-800 series airplanes. That AD supersedes AD 2001-06-08, amendment 39-12155 (66 FR 16116, March 23, 2001), to continue to require repetitive inspections of certain elevator hinge plates, and corrective action, if necessary. That AD also requires accomplishment of the previously optional replacement of the elevator hinge plates with new, improved hinge plates, as terminating action for the repetitive inspections. The requirements of AD 2001-23-01 are prerequisite to the requirements contained in the proposed AD.

Explanation of Relevant Service Information

We have reviewed and approved Boeing Alert Service Bulletin 737-11A1109, dated March 28, 2002, which, for certain airplanes, describes procedures for installation of a speedbrake limitation marker (placard) on the P1-1 and P3-3 panel assemblies. For Group 1 airplanes, the placard is centered directly over the Captain's and the First Officer's clocks; for Group 2 airplanes, the placard is centered directly over the Captain's clock, and directly under the First Officer's clock.

We also have reviewed and approved Boeing Alert Service Bulletin 737-55A1080, dated September 19, 2002, which describes procedures for modification of the elevator and elevator tab assembly. The modification includes installation of a new clevis fitting and a new tab mechanism on the horizontal stabilizer and, for certain airplanes, examination of the hinge plates on the stabilizer trailing edge to make sure the specified hinges are installed. The modification also includes changes to the seals in the balance bays and installation of new elevators and tab assemblies, followed by adjustments and tests of the new installation.

Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition.

Explanation of Requirements of Proposed Rule

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously, except as discussed below.

Differences Between Proposed AD and Service Information Boeing Alert Service Bulletin 737-11A1109

Although the service bulletin recommends accomplishing the installation of the placards “at the first maintenance period when material and manpower are available,” we have determined that such an imprecise compliance time would not address the identified unsafe condition in a timely manner. In developing an appropriate compliance time for the installation in this proposed AD, we considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the modifications. In light of all of these factors, we find a compliance time of 90 days for completing the required installation to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

Additionally, the service bulletin does not recommend a corresponding change to the Limitations Section of the AFM to reflect the speedbrake limitation on the placards; however, this proposed AD requires that, for certain airplanes, such a change be made within 90 days to instruct the flightcrew not to extend the speedbrake lever beyond the flight detent in flight.

Boeing Alert Service Bulletin 737-55A1080

The service bulletin specifies accomplishment of certain actions required by this proposed AD in accordance with either the Boeing 737 Airplane Maintenance Manual (AMM) or an “operator's equivalent procedure.” However, this proposed AD requires that the actions required by those paragraphs be accomplished in accordance with the procedures specified in the Boeing 737 AMM. “Operators' equivalent procedures” may be used only if approved as an alternative method of compliance in accordance with paragraph (e) of this AD.

Cost Impact

There are approximately 1,174 airplanes of the affected design in the worldwide fleet. We estimate that 550 airplanes of U.S. registry would be affected by this proposed AD.

It would take approximately 1 work hour per airplane to accomplish the proposed placard installation, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed installation on U.S. operators is estimated to be $33,000, or $60 per airplane.

It would take approximately 1 work hour per airplane to accomplish the proposed AFM revision, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed revision on U.S. operators is estimated to be $33,000, or $60 per airplane.

It would take approximately 88 work hours per airplane to accomplish the proposed modification of the elevator and elevator tab assembly, at an average labor rate of $60 per work hour. The FAA has been advised by Boeing that the manufacturer will provide parts for the elevator/tab retrofit, including shipping, at no cost to operators. The manufacturer will have operators “exchange” their existing parts for new parts to support the retrofit program. Based on this information, the cost impact of the proposed modification on U.S. operators is estimated to be $2,904,000, or $5,280 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

Regulatory Impact

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

PART 39—AIRWORTHINESS DIRECTIVES

1. The authority citation for part 39 continues to read as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]

2. Section 39.13 is amended by adding the following new airworthiness directive:

Boeing: Docket 2002-NM-240-AD.

Applicability: Model 737-600,-700,-700C,-800, and-900 series airplanes; line numbers 1 through 1174 inclusive; certificated in any category.

Note 1:

This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.

Compliance: Required as indicated, unless accomplished previously.

To prevent severe vibration of the elevator and elevator tab assembly, which could result in severe damage to the horizontal stabilizer, followed by possible loss of the elevator tab and consequent loss of controllability of the airplane, accomplish the following:

Airplane Flight Manual (AFM) Revision/Placard Installation

(a) For Model 737-600,-700,-700C,-800, and-900 series airplanes having line numbers 1 through 1043 inclusive: Within 90 days after the effective date of this AD, do the actions specified in paragraphs (a)(1) and (a)(2) of this AD.

(1) Install a speedbrake limitation placard on the P1-1 and P3-3 panel assemblies per Figure 1 or Figure 2, as applicable, of paragraph 3.B., “Work Instructions,” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-11A1109, dated March 28, 2002.

(2) Revise the Limitations Section of the FAA-approved AFM to include the following statement (this may be accomplished by inserting a copy of this AD in the AFM): “Do not extend the speedbrake lever beyond the flight detent in flight.”

Modification

(b) For Model 737-600,-700,-700C, and-800 series airplanes having line numbers 1 through 1174 inclusive: Before the accumulation of 18,000 total flight cycles, or within 2 years after the effective date of this AD, whichever occurs first, modify the elevator and elevator tab assemblies (including installation of a new clevis fitting and a new tab mechanism on the horizontal stabilizer and, for certain airplanes, examination of the hinge plates on the stabilizer trailing edge to make sure the specified hinges are installed; changes to the seals in the balance bays; and installation of new elevators and tab assemblies, followed by adjustments and tests of the new installation), per the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1080, dated September 19, 2002.

(c) Accomplishment of the modification required by paragraph (b) of this AD terminates the actions required by the ADs specified in the table below.

(d) If the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1080, dated September 19, 2002, specify that the actions may be accomplished in accordance with an operator's “equivalent procedure:” The actions must be accomplished per the applicable chapter of the Boeing 737 Airplane Maintenance Manual specified in the alert service bulletin.

Alternative Methods of Compliance

(e) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.

Note 2:

Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.

Special Flight Permit

(f) Special flight permits may be issued in accordance with sections § § 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.

The Federal Aviation Administration (FAA) proposes to adopt a new airworthiness directive (AD) that is applicable to Rolls-Royce plc (RR) model RB211-535E4-B-37 and RB211-535E4-B-75 turbofan engines. This proposal would require removal from service of certain high pressure (HP) turbine discs before they reach newly established life limits. This proposal is prompted by the manufacturer's inspections and analysis of HP turbine discs that have accumulated high cycles. The analysis reveals these discs to be sensitive to corrosion-induced cracking in the disc rim cooling hole area, which could result in uncontained HP disc failure. The actions specified by the proposed AD are intended to prevent corrosion-induced cracking of the HP turbine disc which could cause an uncontained HP turbine disc failure and damage to the airplane.

DATES:

Comments must be received by January 14, 2002.

ADDRESSES:

Submit comments in triplicate to the Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2002-NE-12-AD, 12 New England Executive Park, Burlington, MA 01803-5299. Comments may be inspected at this location, by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. Comments may also be sent via the Internet using the following address: “9-ane-adcomment@faa.gov”. Comments sent via the Internet must contain the docket number in the subject line.

Information regarding this action may be examined, by appointment, at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA.

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NE-12-AD.” The postcard will be date stamped and returned to the commenter.

Availability of NPRM's

Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2002-NE-12-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

Discussion

The manufacturer has inspected and analyzed some HP turbine discs that have accumulated high cycles that were installed in model RB211-535E4-B-37 and RB211-535E4-B-75 turbofan engines. The inspection and analysis reveals these discs to be sensitive to corrosion and crack propagation in the disc rim cooling hole area, which could result in uncontained HP turbine disc failure. The manufacturer has determined that the affected HP turbine discs are unable to achieve the previously published life limit of 20,000 cycles-since-new (CSN), due to the potential for corrosion-induced cracking to occur at or near that published life limit.

Proposed Requirements of This AD

Since an unsafe condition has been identified that is likely to exist or develop on other RR model RB211-535E4-B-37 and RB211-535E4-B-75 turbofan engines of the same type design that are used on airplanes registered in the United States, the proposed AD would require removing from service HP turbine discs, P/N's UL27680, UL27681, UL39766, and UL39767 before reaching the new life limit of 15,000 CSN.

Economic Analysis

There are approximately 400 RR model RB211-535E4-B-37 and RB211-535E4-B-75 turbofan engines in the worldwide fleet containing the affected HP turbine discs, P/N's UL27680, UL27681, UL39766, and UL39767. The FAA estimates that 346 engines installed on airplanes of U.S. registry will be affected by this AD, that it will take approximately 112 work hours per engine to replace an affected disc, and that the average labor rate is $60 per work hour. The FAA estimates that the prorated cost of the life reduction per engine would be approximately $64,000. Based on these figures, the total cost of the AD to remove from service the HP turbine discs at the new life limit of 15,000 CIS, rather than the former life limit of 20,000 CIS, is estimated to be $24,469,120.

Regulatory Analysis

This proposed rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposed rule.

For the reasons discussed above, I certify that this proposed regulation (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

PART 39—AIRWORTHINESS DIRECTIVES

1. The authority citation for part 39 continues to read as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]

2. Section 39.13 is amended by adding the following new airworthiness directive:

This airworthiness directive (AD) applies to each engine identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For engines that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.

Compliance: Compliance with this AD is required as indicated, unless already done. To prevent corrosion-induced cracking of the HP turbine disc which could cause an uncontained HP turbine disc failure and damage to the airplane, do the following:

(b) After the effective date of this AD, do not install any HP turbine disc listed in this AD that exceeds 15,000 CSN.

Alternative Methods of Compliance

(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Engine Certification Office (ECO). Operators must submit their request through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, ECO.

Note 2:

Information concerning the existence of approved alternative methods of compliance with this airworthiness directive, if any, may be obtained from the ECO.

Special Flight Permits

(d) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be done.

We propose to conduct pilot projects wherein we will request photographic identification from individuals filing for title II and title XVI disability benefits in specified geographic areas covered by the pilot projects. In addition, we would require individuals to allow us to take their photograph and we would make these photographs a part of the claims folder. We would permit an exception to the photograph requirement when an individual has a sincere religious objection. This process would strengthen the integrity of the disability claims process by helping to ensure that the individual filing the application is the same individual examined by the consultative examination (CE) physician.

DATES:

To consider your comments, we must receive them no later than January 14, 2003.

ADDRESSES:

You may give us your comments by using: our Internet site facility (i.e., Social Security Online) at http://www.ssa.gov/regulations, e-mail to regulations@ssa.gov; by telefax to (410) 966-2830; or by letter to the Commissioner of Social Security, P.O. Box 17703, Baltimore, MD 21235-7703. You may also deliver them to the Office of Process and Innovation Management, Social Security Administration, 2109 West Low Rise Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, between 8 a.m. and 4:30 p.m. on regular business days. Comments are posted on our Internet site for your review, or you may inspect them on regular business days by making arrangements with the contact person shown under FOR FURTHER INFORMATION CONTACT.

Electronic version: The electronic file of this document is available on the date of publication in the Federal Register at http://www.access.gpo.gov/su_docs/aces/aces140.html. It is also available on the Internet site for SSA (i.e., Social Security Online) at http://www.ssa.gov/regulations.

The purpose of the claimant identification pilots is to test and gather information in the use of photographic identification to address the issue of complicit impersonation in the disability claims process. Complicit impersonation is accomplished when an individual, posing as the intended claimant, and with the consent of the claimant, responds to a consultative examination appointment in order to misrepresent the claimant's true medical condition or provides false or misleading information that affects eligibility during interviews with SSA field office employees. SSA and the Office of the Inspector General (OIG) have noticed an upward trend in the number of such instances. It has become apparent that we need to strengthen our procedures for identity verification. We believe that the technology for the photographic identification process is currently available and could be implemented over a short time frame. The photographic identification process should give SSA an economical yet effective means of providing improved identity documents to CE physicians. We anticipate that it will be readily accepted by the public. We will evaluate the results of the pilot and expand or modify the procedures accordingly.

How We Would Conduct the Pilot Project

We propose to conduct the pilots in the following designated geographic areas:

(1) All SSA field offices in the State of South Carolina.

(2) The Augusta, Georgia SSA field office.

(3) All SSA field offices in the State of Kansas.

(4) Selected SSA field offices located in New York City.

The pilots would be in effect for a six-month period of time and would begin upon the effective date of the final rules.

Who Would Be Affected

Individuals filing for title II and/or title XVI disability benefits at a Social Security office in the designated areas noted above would be required to participate in the claimant identification pilots. Individuals filing via the Internet or by telephone would also be included. We will be monitoring any possible impact that the pilot procedures might have on SSA's initiative to encourage the filing of applications online via the Internet.

Providing Photographic Identification

While not part of the regulatory requirement, each individual would be asked to provide some form of photographic identification. This identification would be photocopied and the copy made a part of the SSA claims folder. SSA personnel would continue to follow regular identification procedures by asking the individuals questions based on information in the SSA database to ensure that the individuals are who they hold themselves out to be. SSA personnel would obtain additional identifying information if there is a doubt about the identity of the individual. If the individual does not have photographic identification available or does not wish to provide it to us, SSA personnel would not require it but will still follow regular identification procedures as before the pilots went into effect.

Photographs Taken by SSA

Also as part of the claimant identification pilots, each individual filing for disability benefits at a location participating in the pilot program would be required to have a photograph taken by SSA personnel, regardless of whether the individual provides the photographic identification discussed above. A copy would be made of this image and placed in the SSA claims folder. Images would also be stored electronically and accessed by authorized SSA and Disability Determination Service (DDS) personnel.

If We Request a Consultative Examination

If DDS personnel request a consultative examination (CE) for the individual, a hard copy image of the photograph would be made available to the person conducting the CE. This would help to determine whether the individual presenting himself or herself for examination is the same individual who presented himself or herself as the individual filing for disability benefits. We would ask the CE physician to copy the individual's own photographic identification when the physician was not provided with a photo or a copy of a photographic identification previously taken by SSA personnel.

Other Situations

This same procedure would be used to verify the identity of pilot participants in the following situations:

In this new section we are proposing to require individuals filing for title II disability benefits to have their photograph taken by the Social Security Administration. We would permit an exception to the photograph requirement when an individual has a sincere religious objection.

In this new section we are proposing to require individuals filing for title XVI disability benefits to have their photograph taken by the Social Security Administration. We would permit an exception to the photograph requirement when an individual has a sincere religious objection.

Federal Register Notice for Modifying Privacy Act System of Records

A formal notice that will modify the Privacy Act system of records for the Claims Folder System will be published in the Federal Register to reflect the new information to be collected during the pilot projects.

Regulatory Procedures Clarity of These Regulations

Executive Order 12866, as amended by Executive Order 13258, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make these proposed rules easier to understand. For example:

• Have we organized the material to suit your needs?

• Are the requirements in the rules clearly stated?

• Do the rules contain technical language or jargon that isn't clear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rules easier to understand?

Executive Order 12866, as Amended by Executive Order 13258

The Office of Management and Budget (OMB) has reviewed these proposed rules in accordance with Executive Order 12866, as amended by Executive Order 13258. Because of the pilot's short time duration and limited geographic coverage, we expect any costs or savings to be negligible (i.e., less than $2.5 million).

Regulatory Flexibility Act

We certify that these proposed rules will not have a significant economic impact on a substantial number of small entities because they affect only individuals or States. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

Paperwork Reduction Act

These proposed rules contain reporting requirements as shown in the following table.

Section Annual number of responses Frequency of response Average burden per response

(minutes)

Estimated annual burden

(hours)

404.617 13,910 1 5 1,159 416.327 14,080 1 5 1,173 Total 27,990 2,332

An Information Collection Request has been submitted to OMB for clearance. We are soliciting comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. Comments may be mailed or faxed to the Office of Management and Budget and the Social Security Administration at the following addresses/fax numbers:

For the reasons set out in the preamble, we propose to amend part 404, subpart G of chapter III, title 20 Code of Federal Regulations and part 416, subpart C of chapter III title 20 Code of Federal Regulations as follows:

(a) To be eligible for Social Security disability insurance benefits in the designated pilot geographic areas during the time period of the pilot, you or a person acting on your behalf must give SSA permission to take your photograph and make this photograph a part of the claims folder. You must give us this permission when you apply for benefits and/or when we ask for it at a later time. Failure to cooperate will result in denial of benefits. We will permit an exception to the photograph requirement when an individual has a sincere religious objection. This pilot will be in effect for a six-month period after the final rules become effective.

(b) Designated pilot geographic areas means:

(1) All SSA field offices in the State of South Carolina.

(2) The Augusta, Georgia SSA field office.

(3) All SSA field offices in the State of Kansas.

(4) Selected SSA field offices located in New York City.

PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND AND DISABLED Subpart C—[Amended]

3. The authority citation for subpart C of part 416 continues to read as follows:

Authority:

Secs. 702(a)(5), 1611, and 1631(a), (d), and (e) of the Social Security Act (42 U.S.C. 902(a)(5), 1382, and 1383(a), (d), and (e)).

4. Add new § 416.327 under the existing heading, APPLICATIONS, to read as follows:

(a) To be eligible for SSI disability benefits in the designated pilot geographic areas during the time period of the pilot, you or a person acting on your behalf must give SSA permission to take your photograph and make this photograph a part of the claims folder. You must give us this permission when you apply for benefits and/or when we ask for it at a later time. Failure to cooperate will result in denial of benefits. We will permit an exception to the photograph requirement when an individual has a sincere religious objection. This pilot will be in effect for a six-month period after the final rules become effective.

We propose to modify our regulations dealing with the collection of program overpayment debts that arise under titles II and XVI of the Social Security Act (the Act) and administrative debts owed to us. Specifically, we propose to make some changes and establish new regulations that will establish our rules on the use of administrative wage garnishment (AWG) to collect such debts when they are past due. AWG is a process whereby we order the debtor's employer to withhold and pay to us up to 15 percent of the debtor's disposable pay every payday until the debt is repaid. The employer is required by law to comply with our AWG order.

DATES:

To be sure your comments are considered, we must receive them no later than January 14, 2003.

ADDRESSES:

You may give us your comments by using: our Internet site facility (i.e., Social Security Online) at http://www.ssa.gov/regulations/, e-mail to regulations@ssa.gov, by telefax to (410) 966-2830 or by letter to the Commissioner of Social Security, P.O. Box 17703, Baltimore, Maryland 21235-7703. You may also deliver them to the Office of Process and Innovation Management, Social Security Administration, 2109 West Low Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, between 8 a.m. and 4:30 p.m. on regular business days. Comments are posted to our Internet site for your review, or you may inspect them on regular business days by making arrangements with the contact person shown in this preamble.

Electronic version: The electronic file of this document is available on the date of publication in the Federal Register at http://www.access.gpo.gov/su_docs/aces/aces140.html. It is also available on the Internet site for SSA (i.e., Social Security Online): http://www.ssa.gov/regulations.

Section 31001(o)(1) of Public Law 104-134 amended Chapter 37, subchapter II, of title 31, United States Code, by adding section 3720D to permit Federal agencies to use AWG to recover past due debts. We propose to pursue AWG to collect past due program overpayment debts incurred under title II and title XVI of the Act and past due administrative debts (see 20 CFR 422.306(a) for examples of administrative debts). The proposed regulations discussed below would implement 31 U.S.C. 3720D under the guidance provided by the Department of the Treasury at 31 CFR 285.11.

Explanation of Changes to Regulations

We propose to create a new subpart E in part 422 of our regulations containing the rules we will use to collect both title II and title XVI program overpayments and administrative debts by AWG. Proposed subpart E would include sections that would explain the conditions for our use of AWG, the rights of the debtor and the responsibilities of the employer.

In proposed § 422.401, we describe the scope of this subpart—our use of AWG under 31 U.S.C. 3720D to recover past due debts that you owe.

Proposed § 422.402 contains definitions of several terms used in the new subpart, including:

• Paragraph (a), defining “administrative wage garnishment” as the process whereby we order your employer to withhold from your disposable pay and send the amount withheld to us;

• Paragraph (b), defining the term “debt” to mean any amount of money or property that we determine is owed to the United States government and that arises from a program that we administer or an activity that we perform;

• Paragraph (c), defining the term “disposable pay” to mean the amount equal to your total compensation from an employer (including, among other things, wages or salary, bonuses, commissions and vacation pay) after deduction of health insurance premiums and amounts withheld as required by law other than amounts withheld under court order.

Proposed § 422.403 would provide that, subject to certain exceptions and conditions, we would use AWG to collect any debt that is past due. We may use AWG concurrently with other practices, such as, tax refund offset and other administrative offset conducted by the Department of the Treasury and referral of information about the debt to consumer reporting agencies. See paragraph (a). We would not use AWG to collect a debt from salary or wages paid by the United States Government. If you have been separated involuntarily from employment, we will not use AWG against you until you have been re-employed continuously for at least 12 months. See paragraph (b).

In paragraphs (c) and (d) of proposed § 422.403, we describe the conditions under which we could apply AWG to recover title II and title XVI program overpayment debts, respectively. We could apply AWG if all of the following conditions are met.

• You are not receiving benefits under the program under which the overpayment occurred.

• For an overpayment under title XVI, we are not collecting the debt by reducing your title II benefits.

• We have completed our billing sequence (i.e., we have sent an overpayment notice, reminder notice and past-due notice) or we have terminated or suspended collection activity.

• We have no installment payment arrangement with you, or you failed to make payment under such an arrangement for two consecutive months.

• You have not requested that we waive collection of the overpayment, or you requested waiver but we determined that we would not waive collection.

• You have not requested reconsideration of the initial overpayment determination, or you requested reconsideration but we affirmed the initial determination in whole or in part.

• We cannot recover the overpayment by adjustment of benefits payable to someone other than you.

According to 31 U.S.C. 3720D(b), we must send you written notice at least 30 days prior to taking AWG action. We propose to send the notice at least 60 days before we would take AWG action. Proposed § 422.405 describes the information we would include in that notice:

• The payment of your debt is past due;

• The nature and amount of your debt;

• Our intention to collect the debt by AWG;

• The amount that could be withheld from your disposable pay (the payment schedule) under AWG;

• You may inspect and copy our records about the debt;

• You may ask us to review the debt (i.e., whether you owe the amount stated in the notice) or the payment schedule stated in the notice;

• You may request an installment payment plan.

The notice would also explain that at the expiration of 60 calendar days from the date of the notice we would order your employer to begin withholding from your disposable pay, unless within that 60-day period you pay us the full amount of the debt, request review of the debt or the payment schedule or request to establish a written agreement to pay us by installments. We would keep an electronic record of the notice, showing the date we mailed it and the amount of the debt.

Proposed § 422.410 explains the actions we would take after we send the notice. We would not send an AWG order to your employer before the expiration of 60 calendar days from the date of the notice. If within that 60-day period you would request that we review the debt (see proposed § 422.425) or the payment schedule (see proposed § 422.415) stated in the notice or request an installment payment arrangement, we would not take further action until we send you a written notice of our decision. If within that 60-day period you do not pay the full balance of the debt, request review, or request an installment payment arrangement, we may send the AWG order to your employer without further delay. If your request for review is late, we would still perform the review even though we would send the AWG order to your employer. However, if you had good cause for failing to request review of the debt or the payment schedule on time, we would treat your request as if we received it within the 60-day period and delay further action until we send you our decision. Paragraph (b) of proposed § 422.410 describes the circumstances that show good cause for your failure and gives examples. If we arrange an installment payment plan with you after we send you the AWG notice and you fail to make the installment payments for two consecutive months, we may send your employer an AWG order without further delay.

Under 31 U.S.C. 3720D(b)(3) and (5) and (c), we must give you the opportunity to inspect and copy our records relating to the debt and the opportunity for a hearing on the existence and amount of the debt and the terms of the repayment schedule. We address these requirements in proposed §§ 422.415, 422.420 and 422.425.

Proposed § 422.415 provides that, upon your request, we would review the amount that your employer would withhold from your disposable pay (the payment schedule) and, when we find that withholding a particular amount would cause financial hardship, we would reduce that amount. We would not reduce the amount to be withheld every payday below $ 10.00. We would find financial hardship when evidence submitted by you shows that withholding a particular amount from your disposable pay would deprive you of income necessary to meet ordinary and necessary living expenses. Such expenses would include, among other things, the cost of food, clothing, housing, medical care, insurance, and support of others for whom you are legally responsible. We would not reduce the amount the employer would withhold for financial hardship if the debt was caused by your intentional false statement or willful concealment of or failure to furnish material information.

Proposed § 422.420 explains that we would arrange to make our records relating to the debt available for your inspection and copying if you notify us of your intention to inspect and copy them.

Proposed § 422.425 describes the hearing process, the process by which we would review the debt at your request. Essentially, this would be the same process that we employ to review the debt upon your request before we would refer information to the Department of the Treasury for collection by administrative offset or refer information about the debt to consumer reporting agencies. See 20 CFR 422.317. To exercise your right to this review, you must request review and give us evidence that you do not owe all or part of the debt described in the notice or that we do not have the right to collect it. If you do not request review and give us the evidence before the expiration of 60 calendar days from the date of the notice, we may issue the AWG order without further delay. If you would request review and give us the evidence within that 60-day period, or if you had good cause for failing to request review and give us the evidence on time, we would not take further AWG action unless and until we consider all of the evidence (including our own records) and send you our written findings that all or part of the debt is past due and we have the right to collect it. Our findings would include supporting rationale and would be our final decision on your request. If we would find that you do not owe the debt, or the debt is not overdue, or we do not have the right to collect it, we would not send your employer an AWG order.

Proposed § 422.430 states that, if we would determine that you do not owe the debt or we do not have the right to collect it, we would cancel any AWG order that we issued and refund promptly any amount withheld from your pay under that order. Refunds will not bear interest unless Federal law or contract requires interest.

In proposed § 422.435, we describe the AWG order, the factors that determine the amount your employer must withhold and the information that your employer must send us. Paragraph (a) describes the information that would appear in the AWG order (your name, address and social security number; the amount of the debt; information about the amount that the employer must withhold; and where to send the withheld amount). We would maintain an electronic record of the order showing the date that we mailed the order. See paragraph (b). We would require the employer to certify within 20 days of receipt of the AWG order your employment status and the amount of disposable pay available for withholding. See paragraph (c).

Paragraph (d) of proposed § 422.435 explains how the employer would calculate the actual amount to withhold from your disposable pay on each payday and remit to us. This section would implement 31 U.S.C. 3720D(b)(1) and 31 CFR 285.11(i). Usually, the amount to be withheld under the AWG order would be the lesser of the amount indicated in the order (up to 15% of disposable pay) or the amount by which disposable pay exceeds thirty times the minimum wage.

Paragraph (e) of proposed § 422.435 discusses our rules that would apply if your disposable pay is subject to more than one garnishment order. A withholding order for family support always would have priority over our AWG order. Our AWG order would have priority over other types of orders served after our AWG order unless Federal law provides otherwise. When your disposable pay is already subject to one or more withholding orders with higher or equal priority with our AWG order, the amount that your employer must withhold and remit to us would not be more than an amount calculated by subtracting the amount(s) withheld under the other withholding order(s) from 25% of your disposable pay. Under proposed paragraph (f), we would have your employer withhold more than the amount calculated under these rules if you would request in writing the higher rate of withholding. Moreover, as noted above, we would reduce the amount that your employer would withhold if we find under proposed § 422.415(b) that withholding at that amount would cause you financial hardship.

In paragraphs (a)-(e) of proposed § 422.440, we discuss the responsibilities of your employer under the AWG order. The proposed rules would require your employer to begin withholding the appropriate amount on the first payday following receipt of the AWG order, or on the first or second payday after such receipt if the employer received the AWG order within 10 days before the first payday. The proposed rules would require your employer to continue to withhold and promptly pay the withheld amount to us every payday until we have recovered the debt and any interest, penalties and administrative costs that we may charge you under applicable law. Your employer need not alter its normal pay and disbursement cycles. However, your employer cannot honor any allotment or assignment of pay by you (other than arrangements made to satisfy a family support judgement or order) to the extent that such assignment or allotment would interfere with or prevent withholding under the AWG order.

In paragraph (f) of proposed § 422.440, we explain that Federal law prohibits your employer from using an AWG order as the basis for firing, refusing to employ or disciplining you. You may file a civil action in Federal or State court against an employer who violates the prohibition. See 31 U.S.C. 3720D(e).

In proposed § 422.445, we explain that we may file a civil action in Federal court against the employer for any amounts that it fails to withhold in compliance with our AWG order issued under proposed § 422.435, and the employer may also be liable for our attorney fees and other associated costs and damages. See 31 U.S.C. 3720D(f). We would not bring a civil action against your employer until we terminate collection action against you in accordance with applicable Federal standards, unless earlier filing is necessary to avoid the expiration of any applicable statute of limitations. We would deem collection to be terminated if we receive no payment on the debt for one year.

Other Changes

We would amend 20 CFR 404.527 and 416.590 to mention that we may recover title II and title XVI overpayments, respectively, under the rules in subpart E of part 422.

We propose to add to 20 CFR 404.903 a new paragraph (v) to include in the list of administrative actions that are not initial determinations our determination to use AWG to collect an overpayment made under title II of the Act. We propose to add to 20 CFR 416.1403(a) a new paragraph (20) to include in the list of administrative actions that are not initial determinations our determination to use AWG to collect an overpayment made under title XVI of the Act. As a result of these two revisions, the administrative review procedures in 20 CFR part 404, subpart J, and part 416, subpart N, would not apply to the determination to use AWG. Moreover, that determination would not be subject to judicial review under 42 U.S.C. 405(g) or 1383(c)(3).

Clarity of This Regulation

Executive Order (E.O.) 12866, as amended by E.O. 13258, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make these proposed rules easier to understand.

For example:

• Have we organized the material to suit your needs?

• Are the requirements in the rules clearly stated?

• Do the rules contain technical language or jargon that is unclear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rules easier to understand?

Regulatory Procedures Executive Order 12866

The Office of Management and Budget (OMB) has reviewed these proposed rules in accordance with E.O. 12866, as amended by Executive Order 13258.

Regulatory Flexibility Act

We certify that these proposed regulations would not have a significant impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis, as provided in the Regulatory Flexibility Act, as amended, is not required.

Some entities, as employers of some individuals who owe debts to us, would be subjected to these proposed regulations and to the certification requirement in proposed § 422.435(c). However, any particular small employer is not likely to receive wage garnishment orders from us concerning a significant number of employees. Under proposed § 422.435(c), employers of delinquent debtors must certify certain information about the debtor's status such as the debtor's employment status and earnings. This information is contained in the employer's payroll records. Therefore, it would not take a significant amount of time or result in a significant cost for an employer to complete the certification form. Even if an employer receives withholding orders from us on several employees over the course of a year, the cost imposed on the employer to complete the certifications, withhold from disposable pay, and remit those amounts to us would not have a significant economic impact on that entity. Employers would not be required to vary their normal pay cycles to comply with a withholding order that would be issued under the proposed rules.

Federalism

We have reviewed these proposed rules under the threshold criteria of E.O. 13132, “Federalism,” and determined that they would not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.

Although States and local governments, as employers of some individuals who owe debts to us, would be subjected to these proposed regulations and to the certification requirement in § 422.435(c), there will be a relatively small number of debtors who would meet the criteria for selection who are employed by the States and local governments. Any particular State or local government is not likely to receive AWG orders from us concerning a significant number of employees. Under proposed § 422.435(c), States and local governments that employ delinquent debtors must certify certain information about the debtors' status such as the debtors' employment status and earnings. This information is contained in the States' or local governments' payroll records. Therefore, it would not take a significant amount of time or result in a significant cost for a State or local government to complete the certification form. Even if a State or local government receives AWG orders from us on several employees over the course of a year, the cost imposed on the State or local government to complete the certifications, withhold from disposable pay, and remit those amounts to us would not have a significant economic impact on that entity. States or local governments would not be required to vary their normal pay cycles to comply with AWG orders that would be issued under the proposed rules.

Paperwork Reduction Act

The proposed rules in new subpart E of part 422 contain information collection activities at §§ 422.415, 422.425 and 422.435. The activities are exempt as administrative actions under 44 U.S.C. 3518(c)(1)(B)(ii) from the clearance requirements of 44 U.S.C. 3507 as amended by section 2 of Public Law 104-13 (May 22, 1995), the Paperwork Reduction Act of 1995.

§ 404.527Additional methods for recovery of title II benefit overpayments.

(a) General. In addition to the methods specified in §§ 404.502 and 404.520, an overpayment under title II of the Act is also subject to recovery under the rules in subparts D and E of part 422 of this chapter. Subpart D of part 422 of this chapter applies only under the following conditions:

3. The authority citation for subpart J of part 404 is revised to read as follows:

4. Section 404.903 is amended by removing the word “and” at the end of paragraph (t), replacing the period at the end of paragraph (u) with “; and”, and adding paragraph (v) to read as follows:

§ 404.903Administrative actions that are not initial determinations.

(v) Determining whether we will order your employer to withhold from your disposable pay to collect an overpayment you received under title II of the Social Security Act (see part 422, subpart E, of this chapter).

PART 416—[AMENDED]

5. The authority citation for subpart E of part 416 continues to read as follows:

§ 416.590Are there additional methods for recovery of title XVI benefit overpayments?

(a) General. In addition to the methods specified in §§ 416.560, 416.570, 416.572 and 404.580, we may recover an overpayment under title XVI of the Act from you under the rules in subparts D and E of part 422 of this chapter. Subpart D of part 422 of this chapter applies only under the following conditions:

7. The authority citation for subpart N of part 416 continues to read as follows:

Authority:

Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b).

8. Section 416.1403 is amended by removing the word “and” at the end of paragraph (a)(18), replacing the period at the end of paragraph (a)(19) with “; and”, and adding paragraph (a)(20) to read as follows:

§ 416.1403Administrative actions that are not initial determinations.

(a) * * *

(20) Determining whether we will order your employer to withhold from your disposable pay to collect an overpayment you received under title XVI of the Social Security Act (see part 422, subpart E, of this chapter).

PART 422—[AMENDED]

9. Subpart E is added to read as follows:

Subpart E—Collection of Debts by Administrative Wage Garnishment 422.401 What is the scope of this subpart? 422.402 What special definitions apply to this subpart? 422.403 When may we use administrative wage garnishment? 422.405 What notice will we send you about administrative wage garnishment? 422.410 What actions will we take after we send you the notice? 422.415 Will we reduce the amount that your employer must withhold from your pay when withholding that amount causes financial hardship? 422.420 May you inspect and copy our records related to the debt? 422.425 How will we conduct our review of the debt? 422.430 When will we refund amounts of your pay withheld by administrative wage garnishment? 422.435 What happens when we decide to send an administrative wage garnishment order to your employer? 422.440 What are your employer's responsibilities under an administrative wage garnishment order? 422.445 May we bring a civil action against your employer for failure to comply with our administrative wage garnishment order? Subpart E—Collection of Debts by Administrative Wage Garnishment Authority:

Secs. 205(a), 702(a)(5) and 1631(d)(1) of the Social Security Act (42 U.S.C. 405(a), 905(a)(5) and 1383(d)(1)) and 31 U.S.C. 3720D.

§ 422.401 What is the scope of this subpart?

This subpart describes the procedures relating to our use of administrative wage garnishment under 31 U.S.C. 3720D to recover past due debts that you owe.

§ 422.402 What special definitions apply to this subpart?

(a) Administrative wage garnishment is a process whereby we order your employer to withhold a certain amount from your disposable pay and send the withheld amount to us. The law requires your employer to comply with our garnishment order.

(b) Debt means any amount of money or property that we determine is owed to the United States and that arises from a program that we administer or an activity that we perform. These debts include program overpayments made under title II or title XVI of the Social Security Act and any other debt that meets the definition of “claim” or “debt” at 31 U.S.C. 3701(b).

(c) Disposable pay means that part of your total compensation (including, but not limited to, salary or wages, bonuses, commissions, and vacation pay) from your employer after deduction of health insurance premiums and amounts withheld as required by law. Amounts withheld as required by law include such things as Federal, State and local taxes but do not include amounts withheld under court order.

(d) We, our, or us means the Social Security Administration.

(e) You means an individual who owes a debt to the United States within the scope of this subpart.

§ 422.403 When may we use administrative wage garnishment?

(a) General. Subject to the exceptions described in paragraph (b) and the conditions described in paragraphs (c) and (d) of this section, we may use administrative wage garnishment to collect any debt that is past due. We may use administrative wage garnishment while we are taking other action regarding the debt, such as, using tax refund offset under § 404.520-404.526 and 416.580-416.586 of this chapter and taking action under subpart D of this part.

(b) Exceptions.

(1) We will not use this subpart to collect a debt from salary or wages paid by the United States Government.

(2) If you have been separated involuntarily from employment, we will not order your employer to withhold amounts from your disposable pay until you have been re-employed continuously for at least 12 months. You have the burden of informing us about an involuntary separation from employment.

(c) Overpayments under title II of the Social Security Act. This subpart applies to overpayments under title II of the Social Security Act if all of the following conditions are met:

(1) You are not receiving title II benefits.

(2) We have completed our billing system sequence (i.e., we have sent you an initial notice of the overpayment, a reminder notice, and a past-due notice) or we have suspended or terminated collection activity in accordance with applicable rules, such as, the Federal Claims Collection Standards in 31 CFR 903.2 or 31 CFR 903.3.

(3) We have not made an installment payment arrangement with you or, if we have made such an arrangement, you have failed to make any payment for two consecutive months.

(4) You have not requested waiver pursuant to § 404.506 or § 404.522 of this chapter or, after a review conducted pursuant to those sections, we have determined that we will not waive collection of the overpayment.

(5) You have not requested reconsideration of the initial overpayment determination pursuant to §§ 404.907 and 404.909 of this chapter or, after a review conducted pursuant to § 404.913 of this chapter, we have affirmed, in whole or in part, the initial overpayment determination.

(6) The overpayment cannot be recovered pursuant to § 404.502 of this chapter by adjustment of benefits payable to any individual other than you. For purposes of this paragraph, an overpayment will be deemed to be unrecoverable from any individual who was living in a separate household from yours at the time of the overpayment and who did not receive the overpayment.

(d) Overpayments under title XVI of the Social Security Act. This subpart applies to overpayments under title XVI of the Social Security Act if all of the following conditions are met:

(1) You are not receiving benefits under title XVI of the Social Security Act.

(2) We are not collecting your title XVI overpayment by reducing title II benefits payable to you.

(3) We have completed our billing system sequence (i.e., we have sent you an initial notice of the overpayment, a reminder notice, and a past-due notice) or we have suspended or terminated collection activity under applicable rules, such as, the Federal Claims Collection Standards in 31 CFR 903.2 or 31 CFR 903.3.

(4) We have not made an installment payment arrangement with you or, if we have made such an arrangement, you have failed to make any payment for two consecutive months.

(5) You have not requested waiver pursuant to § 416.550 or § 416.582 of this chapter or, after a review conducted pursuant to those sections, we have determined that we will not waive collection of the overpayment.

(6) You have not requested reconsideration of the initial overpayment determination pursuant to §§ 416.1407 and 416.1409 of this chapter or, after a review conducted pursuant to § 416.1413 of this chapter, we have affirmed all or part of the initial overpayment determination.

(7) We cannot recover your overpayment pursuant to § 416.570 of this chapter by adjustment of benefits payable to any individual other than you. For purposes of this paragraph, if you are a member of an eligible couple that is legally separated and/or living apart, we will deem unrecoverable from the other person that part of your overpayment which he or she did not receive.

§ 422.405 What notice will we send you about administrative wage garnishment?

(a) General. Before we order your employer to collect a debt by deduction from your disposable pay, we will send you written notice of our intention to do so.

(b) Contents of the notice. The notice will contain the following information:

(1) we have determined that payment of the debt is past due;

(2) the nature and amount of the debt;

(3) information about the amount that your employer could withhold from your disposable pay each payday (the payment schedule);

(4) no sooner than 60 calendar days after the date of the notice, we will order your employer to withhold the debt from your disposable pay unless, within that 60-day period, you pay the full amount of the debt or take either of the actions described in paragraphs (b)(6) or (7) of this section;

(5) you may inspect and copy our records about the debt (see § 422.420);

(6) you may request a review of the debt (see § 422.425) or the payment schedule stated in the notice (see § 422.415); and

(7) you may request to pay the debt by monthly installment payments to us.

(c) Mailing address. We will send the notice to the most current mailing address that we have for you in our records.

(d) Electronic record of the notice. We will keep an electronic record of the notice that shows the date we mailed the notice to you and the amount of your debt.

§ 422.410 What actions will we take after we send you the notice?

(a) General.

(1) We will not send an administrative wage garnishment order to your employer before 60 calendar days elapse from the date of the notice described in § 422.405.

(2) If paragraph (b) of this section does not apply and you do not pay the debt in full or do not take either of the actions described in paragraphs (b)(6) or (7) of § 422.405 within 60 calendar days from the date of the notice described in § 422.405, we may order your employer to withhold and send us part of your disposable pay each payday until your debt is paid.

(3) If you request review of the debt or the payment schedule after the 60 calendar day period ends and paragraph (b) of this section does not apply, we will conduct the review. However, we may send the administrative wage garnishment order to your employer without further delay.

(4) We may send an administrative wage garnishment order to your employer without further delay if

(i) You request an installment payment plan after receiving the notice described in § 422.405, and

(ii) We arrange such a plan with you, and

(iii) You fail to make payments in accordance with that arrangement for two consecutive months.

(b) Good cause for failing to request review on time. If we decide that you had good cause for failing to request review within the 60-day period mentioned in paragraph (a)(2) of this section, we will treat your request for review as if we received it within that 60-day period.

(1) Determining good cause. In determining whether you had good cause, we will consider—

(i) Any circumstances that kept you from making the request on time;

(ii) Whether our action misled you;

(iii) Whether you had any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which prevented you from making a request on time or from understanding the need to make a request on time.

(2) Examples of good cause. Examples of facts supporting good cause include, but are not limited to, the following.

(i) Your serious illness prevented you from contacting us yourself or through another person.

(ii) There was a death or serious illness in your family.

(iii) Fire or other accidental cause destroyed important records.

(iv) You did not receive the notice described in § 422.405.

(v) In good faith, you sent the request to another government agency within the 60-day period, and we received the request after the end of that period.

(3) If we issued the administrative wage garnishment order. If we determine that you had good cause under paragraph (b) of this section and we already had sent an administrative wage garnishment order to your employer, we will tell your employer to stop withholding from your disposable pay until we make our decision.

§ 422.415 Will we reduce the amount that your employer must withhold from your pay when withholding that amount causes financial hardship?

(a) General. Unless paragraph (d) of this section applies, we will reduce the amount that your employer must withhold from your pay when you request the reduction and we find financial hardship. In any event, we will not reduce the amount your employer must withhold each payday below $10. When we decide to reduce the amount that your employer withholds, we will give you and your employer written notice.

(1) You may ask us at any time to reduce the amount due to financial hardship.

(2) If you request review of the payment schedule stated in the notice described in § 422.405 within the 60-day period stated in the notice, we will not issue a garnishment order to your employer until we notify you of our decision.

(b) Financial hardship. We will find financial hardship when you show that withholding a particular amount from your pay would deprive you of income necessary to meet your ordinary and necessary living expenses. You must give us evidence of your financial resources and expenses.

(c) Ordinary and necessary living expenses. Ordinary and necessary living expenses include:

You may inspect and copy our records related to the debt. You must notify us of your intention to review our records. After you notify us, we will arrange with you the place and time the records will be available to you. At our discretion, we may send copies of the records to you.

§ 422.425 How will we conduct our review of the debt?

(a) You must request review and present evidence. If you receive a notice described in § 422.405, you have the right to have us review the debt. To exercise this right, you must request review and give us evidence that you do not owe all or part of the debt or that we do not have the right to collect it. If you do not request review and give us this evidence within 60 calendar days from the date of our notice, we may issue the garnishment order to your employer without further delay. If you request review of the debt and present evidence within that 60 calendar-day period, we will not send a garnishment order to your employer unless and until we consider all of the evidence and send you our findings that all or part of the debt is overdue and we have the right to collect it.

(b) Review of the evidence. If you request review of the debt, we will review our records related to the debt and any evidence that you present.

(c) Our findings. Following our review of all of the evidence, we will send you written findings, including the supporting rationale for the findings. Issuance of these findings will be our final action on your request for review. If we find that you do not owe the debt, or the debt is not overdue, or we do not have the right to collect it, we will not send a garnishment order to your employer.

§ 422.430 When will we refund amounts of your pay withheld by administrative wage garnishment?

If we find that you do not owe the debt or that we have no right to collect it, we will promptly refund to you any amount withheld from your disposable pay under this subpart that we received and cancel any administrative wage garnishment order that we issued. Refunds under this section will not bear interest unless Federal law or contract requires interest.

§ 422.435 What happens when we decide to send an administrative wage garnishment order to your employer?

(a) The wage garnishment order. The wage garnishment order that we send to your employer will contain only the information necessary for the employer to comply with the order. This information includes:

(1) Your name, address, and social security number,

(2) The amount of the debt,

(3) Information about the amount to be withheld, and

(4) Information about where to send the withheld amount.

(b) Electronic record of the garnishment order. We will keep an electronic record of the garnishment order that shows the date we mailed the order to your employer.

(c) Employer certification. Along with the garnishment order, we will send your employer a certification form to complete about your employment status and the amount of your disposable pay available for withholding. Your employer must complete the certification and return it to SSA within 20 days of receipt.

(d) Amounts to be withheld from your disposable pay. After receipt of the garnishment order issued under this section, your employer must begin withholding from your disposable pay each payday the lesser of:

(1) The amount indicated on the order (up to 15% of your disposable pay); or

(2) The amount by which your disposable pay exceeds thirty times the minimum wage as provided in 15 U.S.C. 1673(a)(2).

(e) Multiple withholding orders. If your disposable pay is subject to more than one withholding order, we apply the following rules to determine the amount that your employer will withhold from your disposable pay:

(1) Unless otherwise provided by Federal law or paragraph (e)(2) of this section, a garnishment order issued under this section has priority over other withholding orders served later in time.

(2) Withholding orders for family support have priority over garnishment orders issued under this section.

(3) If at the time we issue a garnishment order to your employer amounts are already being withheld from your pay under another withholding order, or if a withholding order for family support is served on your employer at any time, the amounts to be withheld under this section will be the lesser of:

(i) The amount calculated under paragraph (d) of this section; or

(ii) The amount calculated by subtracting the amount(s) withheld under the withholding order(s) with priority from 25% of your disposable pay.

(4) If you owe more than one debt to us, we may issue multiple garnishment orders. If we issue more than one garnishment order, the total amount to be withheld from your disposable pay under such orders will not exceed the amount set forth in paragraph (d) or (e)(3) of this section, as appropriate.

(f) You may request that your employer withhold more. If you request in writing that your employer withhold more than the amount determined under paragraphs (d) or (e) of this section, we will order your employer to withhold the amount that you request.

§ 422.440 What are your employer's responsibilities under an administrative wage garnishment order?

(a) When withholding must begin. Your employer must withhold the appropriate amount from your disposable pay on each payday beginning on the first payday after receiving the garnishment order issued under this section. If the first payday is within 10 days after your employer receives the order, then your employer must begin withholding on the first or second payday after your employer receives the order. Withholding must continue until we notify your employer to stop withholding.

(b) Payment of amounts withheld. Your employer must promptly pay to the Social Security Administration all amounts withheld under this section.

(c) Other assignments or allotments of pay. Your employer cannot honor an assignment or allotment of your pay to the extent that it would interfere with or prevent withholding under this section, unless the assignment or allotment is made under a family support judgment or order.

(d) Effect of withholding on employer pay and disbursement cycles. Your employer will not be required to vary its normal pay and disbursement cycles in order to comply with the garnishment order.

(e) When withholding ends. When we have fully recovered the amounts you owe, including interest, penalties, and administrative costs that we charge you as allowed by law, we will tell your employer to stop withholding from your disposable pay. As an added precaution, we will review our debtors' accounts at least annually to ensure that withholding has been terminated for accounts paid in full.

(f) Certain actions by an employer against you are prohibited. Federal law prohibits an employer from using a garnishment order issued under this section as the basis for discharging you from employment, refusing to employ you, or taking disciplinary action against you. If your employer violates this prohibition, you may file a civil action against your employer in a Federal or State court of competent jurisdiction.

§ 422.445 May we bring a civil action against your employer for failure to comply with our administrative wage garnishment order?

(a) We may bring a civil action against your employer for any amount that the employer fails to withhold from your disposable pay in accordance with paragraphs (d), (e) and (f) of § 422.435. Your employer may also be liable for attorney fees, costs of the lawsuit and (in the court's discretion) punitive damages.

(b) We will not file a civil action against your employer before we terminate collection action against you, unless earlier filing is necessary to avoid expiration of any applicable statute of limitations period. For purposes of this section, “terminate collection action” means that we have terminated collection action in accordance with the Federal Claims Collection Standards (31 CFR 903.3) or other applicable standards. In any event, we will consider that collection action has been terminated if we have not received any payments to satisfy the debt for a period of one year.

The Food and Drug Administration (FDA) is reopening to December 16, 2002, the comment period for a proposed rule published in the Federal Register of November 17, 1999 (64 FR 62746), in which FDA proposed to amend its regulations on nutrition labeling to include the amount of trans fatty acids present in a food in the amount and percent Daily Value declared for saturated fatty acids. Since publication of the proposed rule, the National Academy of Sciences issued a report entitled “Dietary Reference Intakes for Energy, Carbohydrate, Fiber, Fat, Fatty Acids, Cholesterol, Protein and Amino Acids” that did not provide a dietary reference intake value for trans fat. In response to this report, FDA intends to take a more incremental approach and provide for mandatory declaration of trans fat content on a separate line within the Nutrition Facts panel. FDA is reopening the comment period to receive comment on a footnote statement that it is proposing be required on the label when trans fat is listed. Lastly, FDA is outlining conditions for when it would consider exercising enforcement discretion for manufacturers who wish to begin labeling the trans fat content of food products prior to publication of a final rule.

DATES:

Submit written or electronic comments on the proposed footnote by December 16, 2002.

In the Federal Register of November 17, 1999 (64 FR 62746) (the November 1999 proposal), FDA (we) proposed to amend our regulations on nutrition labeling to require that the amount of trans fatty acids (trans fats) present in a food, including dietary supplements, be included in the amount and percent of Daily Value (% DV) declared for saturated fatty acids. We also proposed that, wherever saturated fat limits are placed on nutrient content claims, health claims, or disclosure or disqualifying levels, the amount of trans fatty acids be limited as well. Finally, we proposed to define the nutrient content claim “trans fat free.” In that document, we requested comments on the proposal by February 15, 2000. In the Federal Register of February 16, 2000 (65 FR 7806), we reopened the comment period to April 17, 2000, in response to requests for more time to submit comments. In the Federal Register of December 5, 2000 (65 FR 75887), we again reopened the comment period to January 19, 2001, in response to comments regarding nutrient content claims.

The report summarized that the scientific evidence would suggest a tolerable upper intake level (UL) of zero, but because trans fats are unavoidable in ordinary diets and achieving such a UL would require extraordinary changes in dietary intake patterns that might introduce other undesirable effects and unknown health risks, a UL was not proposed. Instead, the report recommended “that trans fat consumption be as low as possible while consuming a nutritionally adequate diet.” Likewise, the conclusions in the Dietary Guidelines for Americans, 2000 (Ref. 2) and recent guidelines from the National Cholesterol Education Program (NCEP) (Ref. 3) are similar with recommendations to limit trans fat intake in the diet.

The IOM/NAS report (Ref. 1) underscores the relationship between the intake of trans fat and the increased risk for heart disease and emphasizes that consumers need to limit trans fat in their diets. FDA recognizes that, to accomplish this, information on the trans fat content of foods needs to be available on food labels. But the IOM/NAS report did not provide a dietary reference intake (DRI) value for trans fat or information that the agency believes is sufficient to support its establishing a daily reference value (DRV) to assist the agency in providing other information on the label, such as a % DV for trans fat.

Comments to the November 1999 proposal stressed the importance of helping consumers understand the relevance of the quantitative amount of trans fat in relation to recommended dietary intake patterns. In addition, Section 2(b) of the Nutrition Labeling and Education Act of 1990 (the 1990 amendments) (Public Law 101-535) states that the Secretary of Health and Human Services, and by delegation FDA, shall require the declaration of nutrients “be conveyed to the public in a manner which enables the public to readily observe and comprehend such information and to understand its relative significance in the context of a total daily diet.” The % DV has been added to nutrition labeling for most nutrients to achieve this purpose. However, we do not have a basis on which to establish a DV for trans fat at this time. Therefore, in light of the public health recommendations to reduce trans fat intake in the American diet, FDA is proposing to require an asterisk (or other symbol) in the % DV column for trans fat when it is listed, that is tied to a similar symbol at the bottom of the Nutrition Facts box and that is followed by the statement “Intake of trans fat should be as low as possible.” In the absence of a % DV for trans fat, the footnote statement will provide guidance to consumers when using the quantitative information to help maintain healthy dietary practices. This statement is taken from the IOM/NAS macronutrient report and is consistent with the dietary guidance in the other recent scientific reports referenced in this document.

For interested parties who would like to submit comments on the proposed use of the footnote statement “Intake of trans fat should be as low as possible,” we are reopening the comment period of the November 1999 proposal for a period of 30 days. Comments submitted during this period are to be limited to those that directly address the proposed use of the footnote. We are not requesting comments on any other issue, and we do not intend to consider such comments if submitted.

Following receipt of comments on this document, FDA intends to publish in early 2003 a final rule requiring mandatory declaration of trans fat content within the Nutrition Facts panel under the declaration for saturated fat, similar to the declarations of mono- and polyunsaturated fats. In response to interest expressed by manufacturers and trade associations to begin labeling the trans fat content of food products prior to publication of the final rule, we will consider the exercise of our enforcement discretion for such labeling as long as the footnote statement is also included in the Nutrition Facts panel. The agency cautions manufacturers that a final rule on this issue may differ from this proposal and that manufacturers would then be required to change their labels to conform to the final rule.

II. How to Submit Comments

Interested persons may submit to the Dockets Management Branch (see ADDRESSES) written or electronic comments. Two copies of any mailed comments are to be submitted, except that individuals may submit one copy. Submit electronic comments to http://www.fda.gov/dockets/ecomments. Identify all comments with the docket number found in brackets in the heading of this document. You may review received comments in the Dockets Management Branch office between 9 a.m. and 4 p.m., Monday through Friday.

III. References

The following references have been placed on display in the Dockets Management Branch (see ADDRESSES) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday. FDA has verified the following three Web site addresses, but is not responsible for subsequent changes to the Web sites after this document publishes in the Federal Register.

The American Battle Monuments Commission proposes to revise its regulations for responding to public requests for access to records or information under the Freedom of Information Act (FOIA). These regulations update and amplify the Commission's current regulations.

DATES:

We will accept comments from all interested parties until January 14, 2003.

For the reasons stated in the preamble, the American Battle Monuments Commission amends 36 CFR chapter IV as follows:

1. Revise part 404 to read as follows:

PART 404—PROCEDURES AND GUIDELINES FOR COMPLIANCE WITH THE FREEDOM OF INFORMATION ACTSec. 404.1 General. 404.2 Authority and functions. 404.3 Organization. 404.4. Access to information. 404.5 Inspection and copying. 404.6 Definitions. 404.7 Fees to be charged—general. 404.8 Fees to be charged—categories of requesters. 404.9 Miscellaneous fee provisions. 404.10 Waiver or reduction of charges.Authority:

5 U.S.C. 552.

§ 404.1 General.

This information is furnished for the guidance of the public and in compliance with the requirements of section 552 of Title 5, United States Code, as amended.

§ 404.2 Authority and functions.

The general functions of the American Battle Monuments Commission, as provided by statute, 36 U.S.C. 2101, et seq., are to build and maintain suitable memorials commemorating the service of American Armed Forces and to maintain permanent American military cemeteries in foreign countries.

§ 404.3 Organization.

(a) The brief description of the central organization of the American Battle Monuments Commission follows:

(1) The Commission is composed of not more than eleven members appointed by the President.

(2) The day to day operation of the Commission is under the direction of a secretary appointed by the President.

(3) Principal Officials include the Executive Director, Director of Finance, Director of Procurement and Contracting, Director of Engineering, Maintenance, and Operations and Director of Personnel and Administration.

(4) The Commission also creates temporary offices when tasked with major additional responsibilities not of a permanent nature.

(b) Locations. (1) The principal offices of the American Battle Monuments Commission are located at Courthouse Plaza II, Suite 500, 2300 Clarendon Boulevard, Arlington, VA 22201. Persons desiring to visit offices or employees of the American Battle Monuments Commission should write or telephone ahead (703-696-6897 or 703-696-6895) to make an appointment.

(2) Field offices are located in Paris, France; Rome, Italy; Manila, Republic of the Philippines; the Republic of Panama; and Mexico City, Mexico.

§ 404.4 Access to information.

(a) The American Battle Monuments Commission makes available information pertaining to Commission matters within the scope of 5 U.S.C. 552(a)(2) by publishing them electronically at the ABMC home page at www.abmc.gov.

(b) The ABMC FOIA Officer is responsible for acting on all initial requests. Individuals wishing to file a request under the Freedom of Information Act (FOIA) should address their request in writing to the FOIA Officer, American Battle Monuments Commission, Courthouse Plaza II, Suite 500, 2300 Clarendon Boulevard, Arlington, VA 22201 (telephone 703-696-6897 or 703-696-6895). Requests for information shall be as specific as possible.

(c) Upon receipt of any request for information or records, the FOIA Officer will determine within 20 days (excepting Saturdays, Sundays and legal public holidays) after the receipt of such request whether it is appropriate to grant the request and will immediately provide written notification to the person making the request. If the request is denied, the written notification to the person making the request shall include the names of the individuals who participated in the determination, the reasons for the denial, and a notice that an appeal may be lodged within the American Battle Monuments Commission. (Receipt of a request as used herein means the date the request is received in the office of the FOIA Officer.)

(d) Expedited processing. (1) Requests and appeals will be taken out of order and given expedited treatment whenever it is determined that they involve:

(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

(ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information;

(iii) The loss of substantial due process rights; or

(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which effect public confidence.

(2) A request for expedited processing may be made at the time of the initial request for records or at any later time.

(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requester within the category described in paragraph (d)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. A requester within the category (d)(1)(ii) of this section also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public's right to know about government activity generally. The formality of certification may be waived as a matter of administrative discretion.

(4) Within ten days of its receipt of a request for expedited processing, ABMC will decide whether to grant it and will notify the requester of the decision. If a request for expedited treatment is granted, the request will be given priority and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.

(e) Appeals shall be set forth in writing within 30 days of receipt of a denial and addressed to the FOIA Officer at the address specified in paragraph (b) of this section. The appeal shall include a statement explaining the basis for the appeal. Determinations of appeals will be set forth in writing and signed by the Executive Director, or his designee, within 20 days (excepting Saturdays, Sundays, and legal public holidays). If, on appeal, the denial is in whole or in part upheld, the written determination will also contain a notification of the provisions for judicial review and the names of the persons who participated in the determination.

(f) In unusual circumstances, the time limits prescribed in paragraphs (c) and (e) of this section may be extended for not more than 10 days (excepting Saturdays, Sundays, or legal public holidays). Extensions may be granted by the FOIA Officer. The extension period may be split between the initial request and the appeal but in no instance may the total period exceed 10 working days. Extensions will be by written notice to the persons making the request and will set forth the reasons for the extension and the date the determination is expected.

(g) With respect to a request for which a written notice under paragraph (f) of this section extends the time limits prescribed under paragraph (c) of this section, the agency shall notify the person making the request if the request cannot be processed within the time limit specified in paragraph (f) of this section and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of 5 U.S.C. 552(a)(6)(C). When ABMC reasonably believes that a requester, or a group of requestors acting in concert, has submitted requests that constitute a single request, involving clearly related matters, ABMC may aggregate those requests for purposes of this paragraph. One element to be considered in determining whether a belief would be reasonable is the time period over which the requests have occurred.

(h) As used herein, but only to the extent reasonably necessary to the proper processing of the particular request, the term unusual circumstances means:

(1) The need to search for and collect the requested records from establishments that are separated from the office processing the request;

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency which have a substantial subject matter interest therein. § 404.5 Inspection and copying.

When a request for information has been approved pursuant to § 404.4, the person making the request may make an appointment to inspect or copy the materials requested during regular business hours by writing or telephoning the FOIA Officer at the address or telephone number listed in § 404.4(b). Such materials may be copied and reasonable facilities will be made available for that purpose. Copies of individual pages of such materials will be made available at the price per page specified in § 404.7(d); however, the right is reserved to limit to a reasonable quantity the copies of such materials which may be made available in this manner when copies also are offered for sale by the Superintendent of Documents.

§ 404.6 Definitions.

For the purpose of the regulations in this part:

(a) All the terms defined in the Freedom of Information Act apply.

(b) A statute specifically providing for setting the level of fees for particular types of records (5 U.S.C. 552(a)(4)(A)(vi)) means any statute that specifically requires a government agency, such as the Government Printing Office (GPO) or the National Technical Information Service (NTIS), to set the level of fees for particular types of records, in order to:

(1) Serve both the general public and private sector organizations by conveniently making available government information;

(2) Ensure that groups and individuals pay the cost of publications and other services that are for their special use so that these costs are not borne by the general taxpaying public;

(3) Operate an information dissemination activity on a self-sustaining basis to the maximum extent possible; or

(4) Return revenue to the Treasury for defraying, wholly or in part, appropriated funds used to pay the cost of disseminating government information. Statutes, such as the User Fee Statute, which only provide a general discussion of fees without explicitly requiring that an agency set and collect fees for particular documents do not supersede the Freedom of Information Act under section (a)(4)(A)(vi) of that statute.

(c) The term direct costs means those expenditures that ABMC actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.

(d) The term search means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. ABMC employees should ensure that searching for material is done in the most efficient and least expensive manner so as to minimize costs for both the agency and the requester. For example, employees should not engage in line-by-line search when merely duplicating an entire document would prove the less expensive and quicker method of complying with a request. Search should be distinguished, moreover, from review of material in order to determine whether the material is exempt from disclosure (see paragraph (f) of this section).

(e) The term duplication means the making of a copy of a document, or of the information contained in it, necessary to respond to a FOIA request. Such copies can take the form of paper, microform, audio-visual materials, or electronic records (e.g., magnetic tape or disk), among others. The requester's specified preference of form or format of disclosure will be honored if the record is readily reproducible in that format.

(f) The term review refers to the process of examining documents located in response to a request that is for a commercial use (see paragraph (g) of this section) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.

(g) The term commercial use request refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, ABMC must determine the use to which a requester will put the documents requested. Moreover, where an ABMC employee has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the employee should seek additional clarification before assigning the request to a specific category.

(h) The term educational institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education, that operates a program or programs of scholarly research.

(i) The term non-commercial scientific institution refers to an institution that is not operated on a commercial basis (as that term is referenced in paragraph (g) of this section), and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.

The term representative of the news media refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of news) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of freelance journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but ABMC may also look to the past publication record of a requester in making this determination.

§ 404.7 Fees to be charged—general.

ABMC shall charge fees that recoup the full allowable direct costs it incurs. Moreover, it shall use the most efficient and least costly methods to comply with requests for documents made under the FOIA. When documents that would be responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs (see definition in §404.5(b)), such as the NTIS, ABMC should inform requesters of the steps necessary to obtain records from those sources.

(a) Manual searches for records. ABMC will charge at the salary rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the search.

(b) Computer searches for records. ABMC will charge at the actual direct cost of providing the service. This will include the cost of operating the central processing unit (CPU) for that portion of operating time that is directly attributable to searching for records responsive to a FOIA request and operator/programmer salary apportionable to the search.

(c) Review of records. Only requesters who are seeking documents for commercial use may be charged for time spent reviewing records to determine whether they are exempt from mandatory disclosure. Charges may be assessed only for the initial review; i.e., the review undertaken the first time ABMC analyzes the applicability of a specific exemption to a particular record or portion of a record. Records or portions of records withheld in full under an exemption that is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. The costs for such a subsequent review is assessable.

(d) Duplication of records. Records will be duplicated at a rate of $.15 per page. For copies prepared by computer, such as tapes or printouts, ABMC shall charge the actual cost, including operator time, of production of the tape or printout. For other methods of reproduction or duplication, ABMC will charge the actual direct costs of producing the document(s). If ABMC estimates that duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.

(e) Other charges. ABMC will recover the full costs of providing services such as those enumerated below when it elects to provide them:

(1) Certifying that records are true copies;

(2) Sending records by special methods such as express mail.

(3) Eight by ten inch black and white photographs—$3.75

(4) Eight by ten inch color photographs—$5.00

(5) $1.50 per publication

(6) Video Purchase: The Price of Freedom—$13.00

(f) Remittances shall be in the form either of a personal check or bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the order of the Treasury of the United States and mailed to the FOIA Officer, American Battle Monuments Commission, Courthouse Plaza II, Suite 500, 2300 Clarendon Blvd., Arlington, Virginia 22201.

(g) A receipt for fees paid will be given upon request. Refund of fees paid for services actually rendered will not be made.

(h) Restrictions on assessing fees. With the exception of requesters seeking documents for a commercial use, ABMC will provide the first 100 pages of duplication and the first two hours of search time without charge. Moreover, ABMC will not charge fees to any requester, including commercial use requesters, if the cost of collecting a fee would be equal to or greater than the fee itself.

(1) The elements to be considered in determining the cost of collecting a fee are the administrative costs of receiving and recording a requester's remittance, and processing the fee for deposit in the Treasury Department's special account.

(2) For purposes of these restrictions on assessment of fees, the word pages refers to paper copies of 81/2 x 11 or 11 x 14. Thus, requesters are not entitled to 100 microfiche or 100 computer disks, for example. A microfiche containing the equivalent of 100 pages or 100 pages of computer printout, does meet the terms of the restriction.

(3) Similarly, the term search time in this context has as its basis, manual search. To apply this term to searches made by computer, ABMC will determine the hourly cost of operating the central processing unit and the operator's hourly salary plus 16 percent. When the cost of search (including the operator time and the cost of operating the computer to process a request) equals the equivalent dollar amount of two hours of the salary of the person performing the search, i.e., the operator, ABMC will begin assessing charges for computer search.

§ 404.8 Fees to be charged—categories of requesters.

There are four categories of FOIA requesters: commercial use requesters; educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. The specific levels of fees for each of these categories:

(a) Commercial use requesters. When ABMC receives a request for documents for commercial use, it will assess charges that recover the full direct costs of searching for, reviewing for release, and duplicating the record sought. Requesters must reasonably describe the records sought. Commercial use requesters are not entitled to two hours of free search time nor 100 free pages of reproduction of documents. ABMC may recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records (see § 404.8(b)).

(b) Educational and non-commercial scientific institution requesters. ABMC shall provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research. Requesters must reasonably describe the records sought.

(c) Requesters who are representatives of the news media. ABMC shall provide documents to requesters in this category when serving the news dissemination function for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in § 404.4(j), and his or her request must not be made for a commercial use. In reference to this class of requester, a request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. Requesters must reasonably describe the records sought.

(d) All other requesters. ABMC shall charge requesters who do not fit into any of the categories above fees that recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time shall be furnished without charge. Moreover, requests for records about the requesters filed in ABMC's systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974 which permit fees only for reproduction. Requesters must reasonably describe the records sought.

§ 404.9 Miscellaneous fee provisions.

(a) Charging interest—notice and rate. ABMC may begin assessing interest charges on an unpaid bill starting on the 31st day following the day on which the billing was sent. The fact that the fee has been received by ABMC within the thirty day grace period, even if not processed, will suffice to stay the accrual of interest. Interest will be at the rate prescribed in section 3717 of Title 31 of the United States Code and will accrue from the date of the billing.

(b) Charges for unsuccessful search. ABMC may assess charges for time spent searching, even if it fails to locate the records or if records located are determined to be exempt from disclosure. If ABMC estimates that search charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer the requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.

(c) Aggregating requests. A requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When ABMC reasonably believes that a requester, or a group of requestors acting in concert, has submitted requests that constitute a single request, involving clearly related matters, ABMC may aggregate those requests and charge accordingly. One element to be considered in determining whether a belief would be reasonable is the time period over which the requests have occurred.

(d) Advance payments. ABMC may not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless:

(1) ABMC estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. Then, ABMC will notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payment of FOIA fees, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or

(2) A requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 days of the date of the billing). Then, ABMC may require the requester to pay the full amount owed plus any applicable interest as provided above or demonstrate that he or she has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the agency begins to process a new request or a pending request from that requester.

(3) When ABMC acts under paragraph (d)(1) or (2) of this section, the administrative time limits prescribed in the FOIA, 5 U.S.C. 552(a)(6) (i.e., 20 working days from receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extensions of these time limits), will begin only after ABMC has received fee payments described in paragraphs (d)(1) and (2) of this section.

(e) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). ABMC should comply with provisions of the Debt Collection Act, including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to encourage repayment.

§ 404.10 Waiver or reduction of charges.

Fees otherwise chargeable in connection with a request for disclosure of a record shall be waived or reduced where it is determined that disclosure is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester.

PART 405—[REMOVED]

2. Remove part 405.

Dated: November 5, 2002.Theodore Gloukhoff,Director, Personnel and Administration.[FR Doc. 02-28900 Filed 11-14-02; 8:45 am] BILLING CODE 6120-01-PDEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018—AH10Endangered and Threatened Wildlife and Plants; Designations of Critical Habitat for Plant Species From the Island of Lanai, HIAGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule; reopening of comment period.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service) announce the reopening of the public comment period for the proposed rule to designate critical habitat for 32 plants from the island of Lanai, Hawaii. We have received new information since the close of the comment period and the comment period is reopened to allow additional time for all interested parties to consider the information and submit written comments on the proposal. Comments already submitted on the proposed rule need not be resubmitted as they already have been incorporated into the public record and will be fully considered in the final determination.

DATES:

The comment period for this proposal now closes on November 25, 2002. Any comments received by the closing date will be considered in the final decision on this proposal.

ADDRESSES:

Written comments and information should be submitted to the Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Boulevard, Room 3-122, P.O. Box 50088, Honolulu, HI 96850. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

On March 4, 2002, we published a revised proposed critical habitat rule for 32 of the 37 plant species listed under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), known historically from the island of Lanai (67 FR 9806). The original comment period closed on May 3, 2002. The comment period was reopened on July 15, 2002 and closed on August 30, 2002. The current comment period closes on November 25, 2002.

A total of 37 species historically found on Lanai were listed as endangered or threatened species under the Act between 1991 and 1999. Some of these species may also occur on other Hawaiian islands. Previously, we proposed that designation of critical habitat was prudent for 32 (Abutilon eremitopetalum, Adenophorus periens, Bidens micrantha ssp. kalealaha, Bonamia menziesii, Brighamia rockii, Cenchrus agrimonioides, Centaurium sebaeoides, Clermontia oblongifolia ssp. mauiensis, Ctenitis squamigera, Cyanea grimesiana ssp. grimesiana, Cyanea lobata, Cyanea macrostegia ssp. gibsonii, Cyperus trachysanthos, Cyrtandra munroi, Diellia erecta, Diplazium molokaiense, Gahnia lanaiensis, Hedyotis mannii, Hesperomannia arborescens, Hibiscus brackenridgei, Isodendrion pyrifolium, Mariscus fauriei, Neraudia sericea, Portulaca sclerocarpa, Sesbania tomentosa, Silene lanceolata, Solanum incompletum, Spermolepis hawaiiensis, Tetramolopium remyi, Vigna o-wahuensis, Viola lanaiensis, and Zanthoxylum hawaiiense) of the 37 species reported from the island of Lanai. No change is made to the 32 proposed prudency determinations in the March 4, 2002, revised proposed critical habitat rule for plants from Lanai. We previously proposed that designation of critical habitat was not prudent for Phyllostegia glabra var. lanaiensis because it had not been seen recently in the wild, and no viable genetic material of this species is known to exist (65 FR 82086). No change is made to this proposed prudency determination in the March 4, 2002, revised proposed critical habitat rule (67 FR 9806). In the March 4, 2002, revised proposed critical habitat rule, we proposed that designation of critical habitat is prudent for Tetramolopium lepidotum ssp. lepidotum, a species for which a prudency determination has not been made previously. We determined that designation of critical habitat was prudent for Hedyotis schlechtendahliana var. remyi, Labordia tinifolia var. lanaiensis, and Melicope munroi at the time of their listing in 1999.

Since the close of the comment period, we have received new information in the form of a draft conservation agreement (copy available upon request) from the owner of Unit D. The comment period is reopened to allow additional time for all interested parties to consider the information and submit written comments on the proposal. One possible outcome may be a decision to exclude this area from the final designation pursuant to section 4(b)(2) of the Act.

We will accept written comments and information during this reopened comment period. If you wish to comment, you may submit your comments and materials concerning this proposal by any of the following methods:

(1) You may submit written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Blvd., P.O. Box 50088, Honolulu, HI 96850-0001.

(2) You may hand-deliver comments to our Honolulu Fish and Wildlife Office at the address given above.

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours at the address under (1) above. Copies of the draft document are available on the Internet at http://pacificislands.fws.gov or by request from the Field Supervisor at the address and phone number under (1 and 2) above.

Information regarding this proposal is available in alternative formats upon request.

Author

The primary author of this notice is Gina Shultz (see ADDRESSES section).

Authority:

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

Proposed rule; extension of comment period and notice of availability of draft economic analysis.

SUMMARY:

We, the U.S. Fish and Wildlife Service, announce the availability of the draft economic analysis for the proposed designations of critical habitat for the Kauai cave wolf spider and Kauai cave amphipod from the island of Kauai, Hawaii. We are now providing notice of extending the comment period to allow peer reviewers and all interested parties to comment simultaneously on the proposed rule and the associated draft economic analysis. The draft economic analysis shows a range likely costs from the proposed critical habitat designation of between $743 million to $1.955 billion over the 18 year period from 2003 to 2020. Comments previously submitted need not be resubmitted as they will be incorporated into the public record as part of this extended comment period and will be fully considered in preparation of the final rule.

DATES:

We will accept public comments until December 16, 2002.

ADDRESSES:

Written comments and information should be submitted to Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Blvd., P.O. Box 50088, Honolulu, HI 96850-0001. Copies of the draft economic analysis are available on the Internet at http://pacificislands.fws.gov or by request from the Field Supervisor at the above address and 808/541-3441. For further instructions on commenting, refer to Public Comments Solicited section of this notice.

On June 16, 1978, we published in the Federal Register a proposal to list the Kauai cave wolf spider (Adelocosa anops) as an endangered species and the Kauai cave amphipod (Spelaeorchestia koloana) as threatened (43 FR 26084). That proposal was withdrawn on September 2, 1980 (45 FR 58171) as a result of a provision in the 1978 Amendments to the Endangered Species Act of 1973 that required withdrawal of all pending proposals that were not made final within 2 years of the proposal or within one year after passage of the Amendments, which ever period was longer. An initial comprehensive Notice of Review for invertebrate animals was published on May 22, 1984 (49 FR 21664), in which the Kauai cave wolf spider and Kauai cave amphipod were treated as category 2 candidates for Federal listing. Category 2 taxa were those for which conclusive data on biological vulnerability and threats were not currently available to support proposed rules.

We published an updated Notice of Review for animals on January 6, 1989 (54 FR 554). In this notice, the Kauai cave wolf spider and Kauai cave amphipod were treated as category 1 candidates for Federal listing. Category 1 taxa were those for which we had on file substantial information on biological vulnerability and threats to support preparation of listing proposals. However, in the Notice of Review for all animal taxa published on November 21, 1991 (56 FR 58804), the two Kauai cave arthropods were listed as category 2 candidates. In the November 15, 1994, Notice of Review for all animal taxa (59 FR 58982), the two Kauai cave arthropods were again elevated to category 1 candidates. Upon publication of the February 28, 1996, Notice of Review (61 FR 7596), we ceased using candidate category designations and included the two cave arthropods as candidate species. Candidate species are those for which we have on file sufficient information on biological vulnerability and threats to support proposals to list the species as threatened or endangered. The two cave arthropods were included as candidate species in the September 19, 1997 (62 FR 49398), Notice of Review.

A proposed rule to list these two species as endangered was published on December 5, 1997 (62 FR 64340), and the final rule to list them was published on January 14, 2000 (65 FR 2348). In the proposed listing rule, we indicated that designation of critical habitat for the Kauai cave wolf spider and Kauai cave amphipod was not prudent. Our concern was that publication of precise maps and descriptions of critical habitat in the Federal Register could increase human visitation to these highly sensitive cave habitats, which could lead to incidents of vandalism, destruction of habitat, and unintentional cases of take. Also, we believed that critical habitat designation would not provide any additional benefit to these species beyond that provided through listing as endangered.

However, in the final rule, we determined that critical habitat designation was prudent as at the time we did not find specific evidence of taking, vandalism, collection, or trade of these species or any other similarly situated species. Also, we did find that there may also be some educational or informational benefit to designating critical habitat. Therefore, we found that the benefits of designating critical habitat for these two species outweighed the benefits of not designating critical habitat. In that final rule, we determined that critical habitat designation would be prudent, and we also indicated that we were not able to develop a proposed critical habitat designation for both species at that time due to budgetary and workload constraints.

On June 2, 2000, we were ordered by the U.S. District Court for the District of Hawaii (in Center for Biological Diversity v. Babbitt and Clark, Civ. No. 99-00603 (D. Haw.) to publish the final critical habitat designation for both cave animals by February 1, 2002. The plaintiffs and the Service entered into a consent decree in a separate action agreeing to jointly seek an extension of this deadline (Center for Biological Diversity v. Norton, Civ. No. 01-2063 D.D.C. October 2, 2001).

On January 30, 2002, the U.S. District Court in Hawaii approved a joint stipulation to modify the terms of the June 2 order to extend the deadline to August 10, 2002. Subsequently, the Service determined that an additional extension of time was needed to complete this designation making process. On August 21, 2002, the U.S. District Court in Hawaii approved another joint stipulation extending the date for the final rule designating critical habitat for this species to March 31, 2003.

Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Act (16 U.S.C. 1531 et seq.) with regard to actions carried out, funded, or authorized by a Federal agency. Section 4(b)(2) of the Act requires that the Secretary shall designate or revise critical habitat based upon the best scientific and commercial data available, and after taking into consideration the economic impact of specifying any particular area as critical habitat. We have prepared a draft economic analysis of the proposed critical habitat designation. The draft economic analysis is available on the Internet and from the mailing address in the Public Comments Solicited section below.

The public comment period for the March 27, 2002, proposal originally closed on May 28, 2002. We are now announcing the availability of the draft economic analysis and the extension of the comment period for the Kauai cave wolf spider and Kauai cave amphipod. We will accept public comments on the proposal and the associated draft economic analysis for the Kauai cave wolf spider and Kauai cave amphipod until the close of this comment period (see DATES). The extension of the comment period gives all interested parties the opportunity to comment on the proposal and the associated draft economic analysis for the Kauai cave wolf spider and Kauai cave amphipod. Comments already submitted on the proposed designation of critical habitat for the Kauai cave wolf spider and Kauai cave amphipod need not be resubmitted as they will be fully considered in the final determinations.

Public Comments Solicited

We will accept written comments and information during this re-opened comment period. If you wish to comment, you may submit your comments and materials concerning this proposal by any of several methods:

(1) You may submit written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Blvd., P.O. Box 50088, Honolulu, HI 96850-0001. Or by facsimile at 808/541-3470.

(2) You may hand-deliver comments to our Honolulu Fish and Wildlife Office at the address given above.

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours at the address under (1) above. Copies of the draft economic analysis are available on the Internet at http://pacificislands.fws.gov or by request from the Field Supervisor at the address and phone number under (1 and 2) above.

Author(s)

The primary author of this notice is Lorena Wada (seeADDRESSES).

Authority

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

We, the U.S. Fish and Wildlife Service, announce the availability of the draft economic analysis for the proposed designations of critical habitat for the Blackburn's sphinx moth (Manduca blackburni) on the islands of Maui, Hawaii, Molokai, and Kahoolawe, Hawaii. The comment period to allow peer reviewers and all interested parties to comment simultaneously on the proposed rule (67 FR 54763) and the associated draft economic analysis currently ends on December 30, 2002. Over a 10-year period, the draft economic analysis shows a range of direct costs from $1.2 to 1.9 million, and the possibility of indirect costs approaching $500 million. However, many of the indirect costs shown in the analysis result from uncertain and possibly unlikely future private and governmental actions, and we expressly request comments as to the likelihood of these actions occurring and of the indicated costs from these possible actions being incurred. Comments previously submitted need not be resubmitted as they will be incorporated into the public record as part of this extended comment period and will be fully considered in preparation of the final rule.

DATES:

We will accept public comments until December 30, 2002. Any comments received by the closing date will be considered in the final decision on this proposal.

ADDRESSES:

Written comments and information should be submitted to Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Blvd., P.O. Box 50088, Honolulu, HI 96850-0001. Copies of the draft economic analysis are available on the Internet at http://pacificislands.fws.gov or by request from the Field Supervisor at above address and 808/541-3441. For further instructions on commenting, refer to Public Comments Solicited section of this notice.

An initial comprehensive Notice of Review for Invertebrate Animals was published in the Federal Register on May 22, 1984 (49 FR 21664). In that notice, we identified Blackburn's sphinx moth as a category 3A taxon. Category 3A taxa were those for which we had persuasive evidence of extinction. We published an updated Notice of Review for animals on January 6, 1989 (54 FR 554). Although Blackburn's sphinx moth had been rediscovered by 1985, in the 1989 Notice of Review this taxon was again identified as category 3A. In the next Notice of Review on November 15, 1994 (59 FR 58982), this species was reclassified as a category 1 candidate for listing. Category 1 candidates were those taxa for which we had on file sufficient information on biological vulnerability and threats to support preparation of listing proposals. Beginning with our February 28, 1996, Notice of Review (61 FR 7596), we discontinued the designation of multiple categories of candidates, and only those taxa meeting the definition of former category 1 candidates are now considered candidates for listing purposes. In the February 28, 1996, Notice of Review, we identified Blackburn's sphinx moth as a candidate species (61 FR 7596). A proposed rule to list Blackburn's sphinx moth as endangered was published on April 2, 1997 (62 FR 15640). In the September 19, 1997, Notice of Review (62 FR 49398), this species was included as proposed for endangered status.

A final listing rule, listing the Blackburn's sphinx moth as endangered, was published in the Federal Register on February 1, 2000 (65 FR 4770). In that final rule, we determined that critical habitat designation for the moth would be prudent, and we also indicated that we were not able to develop a proposed critical habitat designation for the species at that time due to budgetary and workload constraints.

On June 2, 2000, we were ordered by the U.S. District Court for the District of Hawaii (in Center for Biological Diversity v. Babbitt, Civil No. 99-00603) to publish the final critical habitat designation for Blackburn's sphinx moth by February 1, 2002. The plaintiffs and the Service have entered into a consent decree agreeing to extend the deadline to May 30, 2003. Center for Biological Diversity, et al. v. Norton, Civ. No. 99-00603 (Aug. 22, 2002).

In response to the court order, on June 13, 2002, we published a proposed critical habitat rule for the Blackburn's sphinx moth. The species is known historically from the islands of Hawaii, Kauai, Maui, Molokai, and Oahu, and known currently from the islands of Hawaii, Kahoolawe, and Maui (67 FR 40633). We proposed a total of approximately 40,240 hectares (99,433 acres) on the islands of Maui, Hawaii, Molokai, and Kahoolawe.

Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Act (16 U.S.C. 1531 et seq.) with regard to actions carried out, funded, or authorized by a Federal agency. Section 4(b)(2) of the Act requires that the Secretary designate critical habitat based upon the best scientific and commercial data available, and after taking into consideration the economic impact of specifying any particular area as critical habitat. We have prepared a draft economic analysis of the proposed critical habitat designation. The draft economic analysis is available on the Internet and from the mailing address in the Public Comments Solicited section below.

The public comment period for the June 13, 2002, proposal originally closed on August 12, 2002. On August 26, 2002, we published a Federal Register notice (67 FR 54763) extending the comment period for the proposed designation of critical habitat for Blackburn's sphinx moth. We are now announcing the availability of the draft economic analysis. We will accept public comments on the proposal and the associated draft economic analysis for the Blackburn's sphinx moth until December 30, 2002. Comments already submitted on the proposed designation of critical habitat for the Blackburn's sphinx moth do not need to be resubmitted as they will be fully considered in the final determinations. Written comments should be submitted to us (seeADDRESSES).

Public Comments Solicited

We will accept written comments and information on the proposed critical habitat designation and draft economic analysis for Blackburn's sphinx moth. If you wish to comment, you may submit your comments and materials concerning the proposal and draft economic analysis by the following methods:

(1) You may submit written comments and information to the Field Supervisor by mail, U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Blvd., P.O. Box 50088, Honolulu, HI 96850-0001, or by facsimile, (808) 541-3470.

(2) You may hand-deliver comments to our Honolulu Fish and Wildlife Office at the address given above.

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours at the address under (1) above. Copies of the draft economic analysis are available on the Internet at http://pacificislands.fws.gov or by request from the Field Supervisor at the address and phone number under (1) above.

Author(s)

The primary author of this notice is Mike Richardson (seeADDRESSES).

Authority

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice of intent (NOI) to prepare an EIS; request for comments.

SUMMARY:

NMFS announces its intent to prepare an EIS under the National Environmental Policy Act to assess the potential effects on the human environment of its proposed action to initiate Amendment 1 to the Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks based on the results of the 2002 stock assessments of large coastal sharks (LCS) and small coastal sharks (SCS). The amendment will examine management alternatives available to rebuild or prevent overfishing of Atlantic sharks, consistent with the LCS and SCS stock assessments, the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and other relevant Federal laws. NMFS is requesting comments on a wide range of commercial and recreational management measures including, but not limited to, quotas, minimum sizes, and prohibited species.

DATES:

Comments on this action must be received no later than 5 p.m., local time, on March 17, 2003.

ADDRESSES:

Written comments on this action should be mailed to Christopher Rogers, Chief, NMFS Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910; or faxed to (301) 713-1917. Comments will not be accepted if submitted via email or Internet. For a copy of the 2002 stock assessments, contact Kimberly Marshall, Heather Stirratt, or Karyl Brewster-Geisz at (301) 713-2347.

The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Act. The Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at 50 CFR part 635.

BackgroundLCS

The LCS complex is composed of several species including, but not limited to, sandbar, blacktip, spinner, bull, and tiger sharks. Since the 1993 Shark FMP, LCS have been considered overfished. The latest stock assessment of LCS in the U.S. Atlantic and Gulf of Mexico, completed in September 2002, provides an update on the status of LCS stocks and projects their future abundance under a variety of catch levels in waters off the U.S. Atlantic and Gulf of Mexico coasts. The 2002 assessment includes catch estimates, new biological data, and a number of fishery-independent catch rate series, as well as extended fishery-dependent catch rate series.

The results for the LCS complex indicate that overfishing could still be occurring and the resource may be overfished. However, for sandbar sharks, the stock assessment indicates that, while overfishing could be occurring, current biomass could be near, or somewhat above, maximum sustainable yield (MSY). Additionally, the stock assessment indicates that no reduction in catch for blacktip sharks is needed to maintain the stock at current levels and that some increase may be sustainable in the long term. This stock assessment is currently under peer review.

SCS

The SCS complex is comprised of four species including Atlantic sharpnose, blacknose, bonnethead, and finetooth. The 1992 stock assessment classified SCS as being fully utilized. The 2002 stock assessment of SCS in the U.S. and Gulf of Mexico indicates that the current level of removals is sustainable for the SCS aggregate. Aggregate biomass levels for the SCS aggregate are estimated at or above those which could produce MSY, and are not considered to be overfished. However, recent fishing mortality of finetooth sharks exceeds the fishing mortality at MSY, indicating overfishing is occurring for this species.

Copies of the assessments are available for review (see ADDRESSES).

Management Options

NMFS requests comments on management options for this action. Specifically, NMFS requests comments on commercial management options including quota levels, regional and seasonal quotas, trip limits, minimum sizes, applying dead discards and state landings after a Federal closure to the quota, counting quota over- and underages, and fishery closure and opening notices. Additionally, NMFS request comments on recreational management options including retention limits, minimum sizes, authorized gear, and landing requirements. NMFS also seeks comment regarding deep water and prohibited shark species, display quotas, time/area closures and the organization of species groupings. Comments received on this action will assist NMFS in determining the options for rulemaking to conserve and manage shark resources and shark fisheries.

NMFS intends to publish an Issues and Options paper summarizing the different options under consideration and will announce the availability of this document at a later date. Within the comment period established in this action, NMFS will hold at least one scoping meeting to gather public comment on the implementation of new management measures for Atlantic sharks (time and location details of which will be announced in a subsequent Federal Register notification).

Based on the 2002 stock assessments, NMFS believes the implementation of new management measures via an amendment to the HMS FMP is necessary to rebuild or prevent overfishing of Atlantic sharks. NMFS anticipates completing this amendment and any related documents by January 1, 2004. NMFS is currently in the process of developing new interim management measures via a proposed and final rule. These interim management measures would address quotas and other management measures currently in place and would remain in effect until the amendment is finalized.

NMFS proposes specifications for the 2003 Atlantic herring fishery. The regulations for the Atlantic herring fishery require NMFS to publish specifications for the upcoming year and to provide an opportunity for public comment. The intent of the specifications is to conserve and manage the Atlantic herring resource and provide for a sustainable fishery.

DATES:

Comments must be received no later than 5 p.m., Eastern Standard Time, on December 16, 2002.

Written comments on the proposed specifications should be sent to Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, 1 Blackburn Drive, Gloucester, MA 01930. Mark on the outside of the envelope: “Comments--2003 Herring Specifications.” Comments may also be sent via facsimile (fax) to (978) 281-9371. Comments will not be accepted if submitted via e-mail or the Internet.

Regulations implementing the Atlantic Herring Fishery Management Plan (FMP) require the New England Fishery Management Council's (Council) Atlantic Herring Plan Development Team (PDT) to meet at least annually, no later than July each year, with the Atlantic States Marine Fisheries Commission's (Commission) Atlantic Herring Plan Review Team (PRT) to develop and recommend the following specifications for consideration by the Council's Atlantic Herring Oversight Committee: Allowable biological catch (ABC), optimum yield (OY), domestic annual harvest (DAH), domestic annual processing (DAP), total foreign processing (JVPt), joint venture processing (JVP), internal waters processing (IWP), U.S. at-sea processing (USAP), border transfer (BT), total allowable level of foreign fishing (TALFF), and reserve (if any). The PDT and PRT also recommend the total allowable catch (TAC) for each management area and subarea identified in the FMP. As the basis for its recommendations, the PDT reviews available data pertaining to: Commercial and recreational catch; current estimates of fishing mortality; stock status; recent estimates of recruitment; virtual population analysis results and other estimates of stock size; sea sampling and trawl survey data or, if sea sampling data are unavailable, length frequency information from trawl surveys; impact of other fisheries on herring mortality; and any other relevant information. Recommended specifications are presented to the Council for adoption and recommendation to NMFS.

Proposed 2003 Specifications

At its August 2002 meeting, the Council recommended specifications for the 2003 Atlantic herring fishery. Based on the Council's recommendations, NMFS proposes the specifications and Area TACs contained in the following table.

Specifications and Area TACs for the 2003 Atlantic Herring FisherySpecificationProposed Allocation (mt)ABC300,000OY250,000DAH250,000DAP226,000JVPt20,000JVP10,000

There are two proposed changes from the specifications approved by NMFS for the 2002 fishery: A transfer of 10,000 mt from the Area 2 TAC reserve to the Area 3, TAC resulting in an Area 3 TAC of 60,000 mt and an Area 2 TAC reserve of 70,000 mt; and a restriction on USAP vessels to receive fish from Areas 2 and 3 only. A discussion of impacts of these proposed changes follows.

Increase to the Area 3 TAC

The proposed increase in the Area 3 TAC from 50,000 to 60,000 mt, and concomitant decrease in the Area 2 TAC reserve from 80,000 to 70,000 mt will have no significant impact on the Atlantic herring stock or the Southern New England/Georges Bank Atlantic herring spawning component. Landings from Area 3 totaled 34,510 mt in 2001, a large increase over the 12,884 mt landed from Area 3 in 2000. This would suggest that the Area 3 TAC could be fully harvested in the future, especially if shoreside processors are able to expand markets and processing capacity. Harvest from Area 2 totaled 15,388 mt in 2001, well below the 50,000-mt TAC and 80,000-mt TAC reserve for that area. Therefore, the proposed TAC-reserve reduction to 70,000 mt in Area 2 is not expected to have any impact on the fishery.

USAP

No biological impacts on the stock of Atlantic herring are anticipated as a result of restricting USAP vessels to receiving fish from Areas 2 and 3 only. No vessel has fished under the USAP category since the FMP was implemented. However, if a USAP vessel has the opportunity to operate in or near Area 1 at a lower cost (for fuel, maintenance, or other operational expenses) than it would incur from fishing in Areas 2 or 3, and it is restricted from fishing in Area 1, the profitability of the USAP vessel could be compromised. However, the prohibition on harvesting Area 1 fish for delivery to USAP vessels would leave more fish available to shoreside processors and bait dealers operating on the coasts of Maine, New Hampshire, and Massachusetts, the three states that border Area 1A (the inshore portion of Area 1). The quota for Area 1A was taken prior to the end of both the 2000 and 2001 fishing years.

Classification

This proposed rule has been determined to be not significant under Executive Order 12866.

The Council and NOAA Fisheries prepared an initial regulatory flexibility analysis (IRFA) as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. A summary of the analysis follows:

A description of the reasons why this action is being considered, and the objectives of this proposed rule can be found in the preamble to this proposed rule and are not repeated here. This action does not contain any collection-of-information, reporting, or recordkeeping requirements. It would not duplicate, overlap, or conflict with any other Federal rules.

All of the affected businesses (fishing vessels and dealers) are considered small entities under the standards described in NOAA Fisheries guidelines because they have annual returns (revenues) that do not exceed $3.5 million annually. The last full year of data available for the Atlantic herring fishery is for 2001. There were 146 vessels, 6 processors, and 190 dealers participating in the fishery in 2001. Given that vessels caught less than half the OY in 2001, the proposed status quo OY should not impact harvest levels in 2003.

The Council, in proposing an increase in the Area 3 TAC from 50,000 to 60,000 mt, and concomitant decrease in the Area 2 TAC reserve from 80,000 to 70,000 mt, considered only a zero-sum transfer that would not alter the proposed OY of 250,000 mt. Landings from Area 3 increased from 12,884 mt in 2000 to 34,150 mt in 2001. The Council sought to provide additional opportunity for the industry to increase its activity in Area 3. The Council did not consider transferring any TAC from Area 1 because that is the area in which the fishery has historically concentrated its activity. In fact in 2001, landings from Area 1A and Area 1B totaled 68,130 mt, nearly attaining the combined TAC for both areas of 70,000 mt. Landings from Area 2 in 2001 were 15,388 mt out of a combined Area 2 TAC and Area 2 TAC Reserve of 130,000 mt. Thus the Council concluded that the transfer of 10,000 mt from the Reserve would still leave a substantial amount of TAC for the fishery to expand its activity in Area 2. If the transfer is fully utilized, an additional 10,000 mt would produce additional revenues of 1.2M (assuming $120/mt) to vessels and a proportionate increase in profits to processors.

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As noted above, landings from Area 1 in 2001 neared the total TAC for the area. The Council was concerned that future USAP activity, if allowed in Area 1, would have negative impact on firms that have historically harvested Area 1 fish for sale to shoreside processors. If the Area 1 TACs were attained, harvesting vessels that sell their catch to shoreside processors would have to fish further offshore, increasing their operating costs and potentially reducing their profitability. The economic impact on USAP vessels from prohibition on receiving fish harvested in Areas 1A and 1B cannot be directly measured since there is no history of over-the-side purchases upon which to base economic impacts.

The Council considered a Committee recommendation to reduce USAP by 5,000 mt, but rejected it based on comments that a vessel may operate under this specification in 2003 and be able to utilize 20,000 mt. The specification of 15,000 mt would reduce potential profits of USAP operations when compared to the status quo specification of 20,000 mt, although as yet, no part of USAP has been utilized. The Council did not consider a recommendation to increase USAP by 5,000 mt, because no vessel has fished under the USAP category since the FMP was implemented.

The Agricultural Marketing Service (AMS) is withdrawing a notice soliciting public comments on a petition to change the United States Standards for Grades of Grapefruit Juice. This notice is in response to a letter from a petitioner requesting that their petition be withdrawn.

EFFECTIVE DATE:

November 15, 2002.

FOR FURTHER INFORMATION CONTACT:

Karen L. Kaufman at (202) 720-5021 or e-mail at karen.kaufman@usda.gov.

SUPPLEMENTARY INFORMATION:

A notice was published in the Federal Register (67 FR 39671; June 10, 2002) requesting comments on a petition to change the United States Standards for Grades of Grapefruit Juice. The petitioner, Indian River Citrus League, requested the replacement of the current requirements for U.S. Grade A with the requirements of the Florida Department of Citrus “Gold Standard”. Prior to undertaking research and other work associated with revising the grade standards, AMS decided to seek public comments on the petition.

In response to our request for comments, AMS received six comments from trade associations and various other interested parties. Four of the six comments opposed the proposed new standard.

In a letter dated August 20, 2002, the Indian River Citrus League requested that their petition to change the standards be withdrawn.

The Department is therefore withdrawing the notice published on June 10, 2002, seeking public comments based on the letter from the petitioner withdrawing their request to change the United States Standard for Grade of Grapefruit Juice.

The Office of the Under Secretary for Food Safety, of the U.S. Department of Agriculture and the Food and Drug Administration, of the Department of Health and Human Services, are sponsoring a public meeting on January 7, 2003, to review the technical contents of the agenda item documents and to receive comments on all issues coming before the Eighteenth Session of the Codex Committee on Fats and Oils, which will be held in London, United Kingdom, February 3-7, 2003.

DATES:

The public meeting is scheduled for Tuesday, January 7, 2003 from 10 a.m. to 12 noon.

ADDRESSES:

The public meeting will be held in the Harvey Wiley Federal Building, 5100 Paint Branch Parkway, College Park, Maryland 20740, in Conference Room 1B-042. To receive copies of the documents relevant to this notice, contact the Food Safety and Inspection Service (FSIS) Docket Room, U.S. Department of Agriculture, Food Safety and Inspection Service, Room 102, Cotton Annex, 300 12th Street, SW., Washington, DC 20250-3700. The documents will also be accessible via the World Wide Web at the following address: http://www.codexalimentarius.net.

Send comments (an original and two copies) to the FSIS Docket Room and reference Docket # 02-037N. All comments submitted in response to this notice will be available for public inspection in the FSIS Docket Room between 8:30 a.m. and 4:30 p.m., Monday through Friday.

The Codex Alimentarius Commission (Codex) was established in 1962 by two United Nations organizations, the Food and Agriculture Organization and the World Health Organization. Codex is the major international organization for encouraging fair international trade in food and protecting the health and economic interests of consumers. Through adoption of food standards, codes of practice and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to ensure that the world's food supply is sound, wholesome, free from adulteration, and correctly labeled. The Codex Committee on Fats and Oils (CCFO) was established to elaborate worldwide standards for fats and oils and their products. The Government of United Kingdom hosts this committee and will chair the Committee meeting.

Issues To Be Discussed at the Public Meeting

The following specific issues will be discussed during the public meeting:

1. Matters referred by the Codex Alimentarius Commission and other Codex Committees.

3. Proposed Draft Amendment to the Code of Practice for the Storage and Transport of Edible Fats and Oils in Bulk: Lists of Acceptable Previous Cargoes and Lists of Banned Immediate Previous Cargoes.

4. Proposed Draft Standard for Fat Spreads and Blended Spreads.

Additional Public Notification

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it and make copies of this Federal Register publication available through the FSIS Constituent Update. FSIS provides a weekly Constituent Update, which is communicated via Listserv, a free e-mail subscription service. In addition, the update is available on-line through the FSIS web page located at http://www.fsis.usda.gov. The update is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and any other types of information that could affect or would be of interest to our constituents/stakeholders. The constituent Listserv consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals that have requested to be included. Through the Listserv and web page, FSIS is able to provide information to a much broader, more diverse audience.

For more information contact the Congressional and Public Affairs Office, at (202) 720-9113. To be added to the free e-mail subscription service (Listserv) go to the “Constituent Update” page on the FSIS web site at http://www.fsis.usda.gov/oa/update/update.htm. Click on the “Subscribe to the Constituent Update Listserv” link, then fill out and submit the form.

In accordance with the National Environmental Policy Act, notice is hereby given that the Forest Service, Black Hills National Forest will prepare a Draft Environmental Impact Statement to disclose the environmental consequences of the proposed Elk Bugs and Fuel Project which encompasses approximately 45,498 acres of National Forest System Land (NFS) and 15,068 acres of interspersed private and state lands. Mountain pine beetles are at epidemic levels in portions of the project area and have caused significant mortality of ponderosa pine. Proposed treatments will focus on reducing hazardous fuel concentrations and stand susceptibility to beetle infestation. Priority will be given to treatments on NFS land near private land and those that would contribute to firefighter safety.

In accordance with the National Environmental Policy Act and the National Forest Management Act, the Black Hills National Forest will also evaluate the environmental consequences of four nonsignificant Forest Plan Amendments in the Elk Bugs and Fuel environmental impact statement. The amendments, if approved, would apply only to the Elk Bugs and Fuel project.

The treatments authorized by Pub. L. 107-206 are not subject to the decision that will be made by the Elk Bugs and Fuel Record of Decision. However, section 706 of Pub. L. 107-206 requires that the effects of section 706 actions be disclosed in the Elk Bugs and Fuel cumulative effects analysis for past, present, and reasonable foreseeable future actions. This project proposal does not include any proposed treatments in the Greater Beaver Park Lawsuit Settlement Area, including the Beaver Park roadless area.

DATES:

Comments concerning the scope of the analysis must be received by December 16, 2002. The draft environmental impact statement is expected to be available for public review in April 2003 and the final environmental impact statement is expected to be available in July 2003.

The purpose and need for action of the Elk Bugs and Fuel Project is to reduce mountain pine beetle populations in pine stands, decrease the risk and hazard of wildfire in the proximity of private lands and homes, and to reduce the susceptibility of vegetation to catastrophic fire and further mountain pine beetle attacks.

The Black Hills National Forest also proposes to disclose the effects of four nonsignificant Forest Plan Amendments that are needed because of changed conditions brought about by mountain pine beetle infestations and the associated potential for catastrophic wildfire events. The proposed amendments to the Forest Plan, if approved, would apply only to the Elk Bugs and Fuel Project.

Forest Standard 3202, General Wildlife and Fish Direction, provides for big game screening along 20 percent of the edges of arterial and collector roads. Providing shaded fuel breaks along roads in order to protect resources from potential wildfires will require that this standard be reduced to approximately 14 percent for the project area. Management Area (MA) 5.4, Big Game Winter Range Emphasis, Objective 5.4-205 provides for thermal cover for elk, deer and winter turkey habitat on at least 20 percent of the forested portions of the management area. Standard 5.4-2101 states that thermal cover should not be harvested if the planning unit does not meet Objective 5.4-205. In order to maintain the health of many of the insect infested stands, it is necessary to reduce the basal area so that the remaining healthy trees are less stressed and therefore more capable of withstanding insect attacks. Reducing the basal area of some of these stands will decrease their effectiveness in providing thermal cover. It is therefore necessary to temporarily lower the 20 percent standard to approximately 14 percent within the project area until the stands are treated, recover, and grow to a density that will provide thermal cover in the future.

The responsible official for the Elk Bugs and Fuel Project is John C. Twiss, Forest Supervisor, Black Hills National Forest.

Nature of Decision To Be Made

The Elk Bugs and Fuel environmental impact statement will evaluate site specific management proposals, consider alternatives, and analyze the effects of the activities proposed in these alternatives. It will form the basis for the Responsible Official to determine: (1) Whether or not the proposed activities and alternatives are responsive to the issues, are consistent with Forest Plan direction, meet the purpose and need, and are consistent with other related laws and regulations directing National Forest Management Activities; (2) which actions, if any, to approve; (3) whether or not the information in the analysis is sufficient to implement proposed activities; and (4) whether or not to amend the Black Hills National Forest Management Plan, as previously described.

Scoping Process

Comments will be accepted during the 30-day scoping period as described in this notice of intent. Comments will be reviewed and issues identified. Issues that cannot be resolved by mitigation or minor changes to the proposed action may generate alternatives to the proposed action. This process is driven by comments received from the public, other agencies, and internal Forest Service concerns. To assist in commenting, a scoping letter providing more detailed information on the project proposal has been prepared and is available to interested parties. Contact Carl Leland, Interdisciplinary Team Leader, at the address listed in this notice of intent if you would like to receive a copy.

Preliminary Issues

Preliminary Issues were developed based on past projects in the area (environmental analysis), issues developed for similar projects, and Forest Service concerns and opportunities identified in the Project Area. These issues are listed below:

1. Road management—The Forest Service will complete a Roads Analysis, which includes evaluating all roads in the Project Area for effects to the ecosystem. The proposed action requires examining the road system to determine if the existing road system is adequate (or if improvements are needed), and if any roads need to be closed for resource protection or other reasons (e.g., water quality, wildlife, or recreation opportunities).

2. Mountain pine beetle and forest health—The spread of mountain pine beetle attacks has caused a concern that there could be large-scale mortality if these areas are not treated.

3. Prescribed burns, fuels, and wildland-urban interface—There is a concern for an increased potential for wildfires where there are large areas of unmanaged forest, or where mortality from mountain pine beetle infestations has increased fuels.

4. Wildlife habitat—As evidenced by the proposed Forest Plan Amendments, wildlife habitat will fall below present Forest Plan Standards in several areas. The Proposed Action was developed by weighing the potential effects of the proposed treatments to wildlife habitat against the on-going loss of wildlife habitat through mountain pine beetle attacks plus the potential effects of the increased risk of catastrophic wildfire events. This issue will be fully explored in the environmental impact statement. These issues may be modified as additional issues are identified during scoping. A range of alternatives will be considered after public comments are received and analyzed.

Comment Requested

This notice of intent initiates the scoping process that guides the development of the environmental impact statement. Comments that are site-specific in nature are most helpful to resource professionals when trying to narrow and address the public's issues and concerns.

Early Notice of Importance of Public Participation in Subsequent Environmental Review

A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the Federal Register.

The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts. City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir. 1986) and Wisconsin Heritages, Inc. v. Harris, 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45 day comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final environmental impact statement.

To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.

Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.

This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the possible impact of the proposed actions.

If the Committee approves the proposed additions, the entities of the Federal Government identified in the notice for each service will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government.

2. If approved, the action will result in authorizing small entities to furnish the services to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.

The following services are proposed for addition to Procurement List for production by the nonprofit agencies listed:

Modification concerning affiliated party sales in the comparison market.

SUMMARY:

The Department of Commerce is modifying its methodology in antidumping proceedings concerning the determination of whether sales to affiliated parties in the comparison market are made in the ordinary course of trade and thus may be considered for use in calculating normal value. The schedule for implementing this change is set forth in the “Timetable” section, below.

This change in methodology concerns the test used in antidumping proceedings to determine whether comparison market sales between affiliated parties are made at arm's length and thus may be considered to be within the “ordinary course of trade.”

Article 2.1 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the “AD Agreement”) requires that investigating authorities exclude sales not made in the “ordinary course of trade” from calculations of normal value.1 Section 773(a)(1) of the Tariff Act of 1930, as amended (“the Act”), implements this provision by restricting comparison market sales used to determine normal value to those made in the ordinary course of trade. Under current Department practice, comparison market sales by an exporter or producer to an affiliated customer are treated as having been made at arm's length, and may be considered to be within the ordinary course of trade,2 if prices to that affiliated customer are, on average, at least 99.5 percent of the prices charged by that exporter or producer to unaffiliated comparison market customers.

1 Article 2.1 states: “For the purpose of this Agreement, a product is to be considered as being dumped, i.e., introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting county.”

2 Such sales may be outside the ordinary course of trade for other reasons, e.g., if they are below cost.

Under this 99.5 percent test, the Department determines the weighted-average comparison market selling price for each product for sales by the exporter or producer to each affiliated party. The Department also determines the weighted-average selling price for each product to the group of unaffiliated comparison market customers. For each affiliated customer, the Department compares the weighted-average price to that affiliate for each product to the weighted-average price of the same product to all unaffiliated customers. The Department then weight averages the ratios found for all products sold to the affiliated customer. If the result shows sales prices to an individual affiliated party are, on average, at least 99.5 percent of the sales prices to all unaffiliated comparison market customers (i.e., the overall ratio is at least 99.5 percent), all of the sales to that affiliated party may be treated as being made in the ordinary course of trade and may be used in calculating normal value. Otherwise, if the prices to the affiliate are, on average, less than 99.5 percent of prices to non-affiliates, it is the Department's practice to disregard them. Additionally, for affiliates that pass this test (i.e., those whose weighted-average prices are above 99.5 percent), the exporter or producer may request the exclusion of individual sales to such an affiliate upon a showing that such sales are for other reasons outside the ordinary course of trade, e.g., the prices are “aberrationally” or “artificially” high.

In July 2001, the WTO Appellate Body issued a report in a dispute involving U.S. antidumping measures on certain hot-rolled steel products from Japan (“Japan Hot-Rolled”),3 concerning, among other things, the Department's determination of whether sales made to affiliated parties in the comparison market were made in the ordinary course of trade and thus may be considered for use in calculating normal value. In its report in Japan Hot-Rolled, the Appellate Body found that the Department's application of its 99.5 percent arm's-length test in the underlying proceeding was inconsistent with the obligations of the United States under Article 2.1 of the AD Agreement. In the view of the Appellate Body, “[i]f a Member elects to adopt general rules to prevent distortion of normal value through sales between affiliates, those rules must reflect, even-handedly, the fact that both high and low-priced sales between affiliates might not be “in the ordinary course of trade'.” 4 Furthermore, “the duties of investigating authorities, under Article 2.1 of the Anti-Dumping Agreement, are precisely the same, whether the sales price is higher or lower than the ‘ordinary course’ price, and irrespective of the reason why the transaction is not in the ordinary course of trade. Investigating authorities must exclude, from the calculation of normal value, all sales which are not made in the ordinary course of trade.”5 However, investigating authorities do not need to utilize identical rules to scrutinize each category of sales that is potentially not in the ordinary course of trade.6 WTO Members are afforded discretion in this determination, but such discretion must be exercised in an “even-handed” manner.7

The United States and Japan entered into arbitration over the period of time in which to implement the Appellate Body's findings in the Japan Hot-Rolled dispute. The arbitrator found that the United States has until November 23, 2002, for implementation.

On August 15, 2002, we solicited public comment on our proposed modification to practice with respect to treatment of affiliated party sales in the comparison market.8 We received numerous comments and rebuttal comments submitted pursuant to this notice, as discussed below.

The final modification to the Department's arm's-length test is the same as the proposed modification, with the exception of comparing prices of “similar” products where an identical comparison product was not sold to unaffiliated parties, as described below. The new test will provide that, for sales by the exporter or producer to an affiliate to be included in the normal value calculation, those sales prices must fall, on average, within a defined range, or band, around sales prices of the same or comparable merchandise sold by that exporter or producer to all unaffiliated customers. The band applied for this purpose will provide that the overall ratio calculated for an affiliate be between 98 percent and 102 percent, inclusive, of prices to unaffiliated customers in order for sales to that affiliate to be considered “in the ordinary course of trade” and used in the normal value calculation. This new test is consistent with the view, expressed by the WTO Appellate Body, that rules aimed at preventing the distortion of normal value through sales between affiliates should reflect, “even-handedly,” that “both high and low-priced sales between affiliates might not be “in the ordinary course of trade'.”

The single change from the proposed arm's-length methodology involves comparing prices of products sold to affiliates with prices of non-identical products sold to unaffiliated customers, with an adjustment for physical differences in the products, where there is no identical product sold to non-affiliates. This methodology corresponds to that used in comparing prices of products sold in the U.S. and comparison markets in the dumping analysis. In comparing prices across markets, the Department first seeks to match U.S. sales with comparison market sales of identical merchandise. If there are no appropriate sales of identical merchandise in the comparison market, the Department seeks the most comparable merchandise based on the relevant product matching characteristics. When comparing non-identical merchandise, the Department makes an adjustment, where appropriate, to normal value for differences in physical characteristics.9 This adjustment normally is based on differences in the variable costs of manufacturing attributable to the physical differences between the products.10 While product characteristics differ from case to case, the Department generally does not compare a comparison market product to a given product sold in the United States if the difference in variable manufacturing costs of the two products is greater than 20 percent.

9 See section 773(a)(6)(C)(ii) of the Act.

10 See 19 CFR 351.411.

We plan to employ a corresponding methodology, including adjustments for differences in variable costs and application of the 20 percent “difmer cap,” in analyzing non-identical product matches between sales to affiliated and unaffiliated customers for purposes of the arm's-length test. In many cases the information needed, including matching criteria and variable and total cost information, will be on the record pursuant to our standard information requests.11 Where we lack the necessary information we will limit our analysis to identical merchandise, consistent with our current methodology. That is, we will determine the overall ratio for a given affiliate only on the basis of sales of those products that were also sold to non-affiliates.

11 In determining product matches across markets, the 20 percent difmer cap is calculated by dividing the difference in variable manufacturing costs between the two porducts by the total manufacturing costs of the U.S. product. For the arm's-length test, we will divide the difference invariable manufacturing costs between the two products by the total manufacturing costs of the product sold to the affiliated party. Variable manufacturing costs for home market sales normally are requested in all cases, while total manufacturing costs for home market sales currently are requested incases involving below-cost inquiries.

The inclusion of comparisons of non-identical matches will enhance the reliability of the arm's-length test by increasing the pool of sales used to calculate the affiliate-specific ratios that are assessed against the 98-102 percent band. While some of the public comments submitted expressed concern that comparing non-identical merchandise will add unnecessarily to the complexity of the arm's-length test, or will otherwise increase the chance of error resulting from data not fully analyzed at the time the arm's-length test is conducted, we believe the benefits of bringing these matches within the ambit of the test outweigh these concerns.12

12 See also “Analysis of Public Comments,” comment 5, below.

Finally, as noted in the Proposed Modification and as further discussed in the “Comments” section below, we will continue our present practices with regard to the use of so-called “downstream” sales (sales made by an affiliated buyer to that buyer's subsequent customer). Specifically:

1. If sales to all affiliates account for less than five percent of all comparison market sales, we normally will disregard downstream sales.

2. If sales to an affiliate fail the arm's-length test, and (1) does not apply, we normally will request the affiliate's downstream sales and use those instead of the sales which failed that test.

3. If a respondent has cooperated to the best of its ability and is unable to obtain downstream sales, we will not use adverse facts available for those sales.

Analysis of Public Comments

Numerous comments and rebuttal comments were submitted in response to the Proposed Modification. We have carefully considered each of the comments submitted. While we have not adopted suggested alternatives to the proposed 98-102 percent band test, the comments were useful in helping to clarify the concepts underlying the “ordinary course of trade” analysis and in refining the test by allowing for comparisons of non-identical products. As such, we are grateful to those who took the time to comment on this aspect of the Department's antidumping methodology. Specific proposals are summarized below, along with our response to each. For more detail on the comments submitted, see the Department's web site at http://ia.ita.doc.gov, where all comments received have been posted in their entirety.

A number of commenters proposed that the Department should presume that comparison market sales between affiliates are always made outside the ordinary course of trade, and should automatically request downstream sales (sales from the affiliated purchaser to unaffiliated customers). These commenters maintain that such a methodology would be consistent with the Appellate Body report in Japan Hot-Rolled, which explicitly allowed for the use of downstream sales in determining normal value, and would also bring the normal value analysis into alignment with the analysis for U.S. sales, in which sales between affiliates are automatically disregarded. In the view of these commenters, such a methodology would reflect the fact that affiliated party sales are inherently suspect and subject to manipulation. They also suggest that the Act explicitly allows for use of comparison market downstream sales while it does not require the use of prices between affiliates. However, one commenter who recommends this approach acknowledges that it would require a change in the Department's regulations, in particular 19 CFR 351.403(c)-(d). This commenter recommends that the change in practice be accompanied by an announcement that the Department intends to change the regulations to conform to the new practice.

Several commenters objected to this proposal. Some asserted that it is contrary to U.S. law, claiming that the Department must examine all sales in the ordinary course of trade, and citing section 773(f)(2) of the Act in support of the general proposition that the Department must make an affirmative finding that transactions between affiliates do not fairly reflect market value before disregarding them. Others claimed that it is contrary to U.S. regulations, and also is likely to give rise to problems of WTO consistency with respect to the obligation to make fair comparisons.

Department's Position: While we disagree with the comment that U.S. law prohibits requesting downstream sales in lieu of upstream sales to affiliated parties,13 we are not adopting the proposal to automatically disregard sales to affiliates. As we stated in the Proposed Modification and as acknowledged by at least one proponent of automatically excluding sales to affiliates, this proposal conflicts with the assumptions underlying the Department's regulations on affiliated party sales (19 CFR 351.403(c)-(d)) that such sales normally will be used in the dumping analysis if shown to be in the ordinary course of trade.

13 Discretion to request downstream sales is explicit in section 773(a)(5) of the Act (“If the foreign like product is sold, or, in the absence of sales, offered for sale through an affiliated party, the prices at which the foreign like product is sold (or offered for sale) by such affiliated party may be used in determining normal value.”).

We do not believe it necessary or appropriate to change these provisions, as suggested by one commenter. The current regulations were developed after extensive comment, including comment on the issue of whether to require in all cases that respondents report downstream sales. In our view, the regulatory scheme for reporting and analyzing affiliated party sales established by 19 CFR 351.403(c) and (d) strikes the appropriate balance between seeking to use first-level sales from the respondent where such sales can be demonstrated to be within the ordinary course of trade, and requiring downstream sales where sales to affiliates do not meet this standard. While this approach does not look to downstream sales automatically, it places an affirmative obligation on respondents to report such sales where sales to an affiliate cannot be shown to be at arm's length. As noted in the preamble to the regulations, the Department “will require a respondent to demonstrate in each segment of an AD proceeding that the reporting of downstream sales is not necessary.”14 This is accomplished in practice by maintaining a requirement that respondents report downstream sales for all affiliated party sales that do not pass the arm's-length test.

2. Proposals for Using Statistical Testing Methods Instead of a Percentage Band Approach

Several commenters suggested that the Department incorrectly rejected statistically valid testing (e.g., standard deviation, difference in means, non-parametric tests) in the Proposed Modification in favor of the 98-102 percentage band approach. One commenter took issue with the reasons given in the Proposed Modification for not relying on statistical testing in determining whether sales are made in the ordinary course of trade, in particular the statement that “[s]uch tests, properly applied, would allow certain affiliated party sales to be deemed in the ordinary course of trade, including sales with prices below unaffiliated sales prices, that we believe would distort dumping calculations.”15 This statement, according to the commenter, is results-oriented reasoning because the Department is focusing on low-priced sales to affiliates and expressly rejecting statistical tests on the basis that, when properly applied, these tests would not exclude affiliated party transactions that the Department believes would result in the calculation of “distorted” margins. This commenter suggests that the concern over distorted margins is inappropriate in this context, since statistical approaches, if properly structured, by definition are intended to operate in a mathematically neutral manner.

15 Proposed Methodology at 53340-53341.

Another commenter proposed standard deviation testing as an example of a statistically valid methodology more suitable to identifying outlier transactions than the percentage band approach. Citing a proposal for such testing by one of the Japanese respondents in the investigation underlying the Japan Hot-Rolled report, this commenter suggests that, in general, respondents should be allowed on a case-by-case basis to propose alternative testing methods that are reasonable and easy to administer.

Department's Position: While we appreciate the desire for a statistical-testing approach to the arm's-length test, as we indicated in the Proposed Modification, we have been unable to identify an alternative test that adequately serves the purposes of a dumping analysis and can be readily applied in the context of the variety of situations we encounter, including situations that involve multiple products sold to an affiliate. The comment that the Department's reasoning is “results oriented” implies that the Department should be unconcerned that parties might manipulate pricing to affiliates for purposes of a dumping case. We disagree. We do not believe that the purpose of the types of statistical tests considered is applicable in this context. Moreover, the only specific proposal offered for a statistical test would apply the test on a CONNUM-specific basis, which is inconsistent with the purpose of evaluating the overall pricing relationship between the affiliates. (See comment 6 below.) Therefore, we are not persuaded that a statistical test is appropriate in this context.

3. Proposals Regarding Appropriate Size of the Band

A number of commenters proposed that, if the Department decides to use a “band” approach in determining whether comparison market sales to affiliates were made at arm's-length, it should alter the band size from the 98-102 percent range set forth in the Proposed Modification. Three types of proposals were made in this regard: (1) A wider band (e.g., 90-110); (2) a narrower band (e.g., 99.5-100.5); and an “asymmetrical” band (e.g., 99.5-125).

Those favoring a wider band argue that a 98-102 percent range does not sufficiently recognize natural variability within a respondent's pricing data, both between customers and over time. This range, therefore, will produce results that fail to reflect commercial reality, leading to the inappropriate rejection of bona fide arm's-length sales.

These commenters suggest that pricing differences of up to ten percent can occur in the normal course of business for reasons unconnected with affiliation, such as differences in quantities and relative differences in bargaining power. One commenter suggested in addition that some variability in POI-average prices to affiliates and non-affiliates can result from selling in different quantities over time to the two groups, e.g., a higher quantity to affiliated customers early in the POI and a higher quantity to unaffiliated customers later in the POI. Under this scenario, even where there is no variation in pricing to affiliates and non-affiliates at any single point in time, the affiliate-specific ratios calculated by the Department will show variance from average prices to non-affiliates.

These commenters also contend that a restrictive band for determining whether sales to affiliates are within the ordinary course of trade is counter to the general preference in both the AD Agreement and U.S. law for establishing normal value based on comparison market sales. Further, in the event that the Department seeks to replace sales that fail the new arm's-length test with downstream sales (as indicated in the Proposed Modification), a narrow test may impose overly burdensome reporting requirements, in which case it may not be considered sufficiently “even-handed” as the term is used in the Japan Hot-Rolled report.

Finally, certain commenters favoring a broader band suggest that, to the extent there is concern over manipulation of pricing (via clustering of sales to affiliates at the low end of the band), the Department could test for such pricing patterns upon receipt of a respondent's sales databases, and could address such problems on a case-by-case basis, through the fictitious markets provision 16 as well as the ordinary course of trade provision.

16 Section 773(a)(2) of the Act.

Commenters arguing for a narrower band (99.5-100.5) stress that the change in practice under the proposed 98-102 percent band would go beyond the requirements of the Appellate Body report in Japan Hot-Rolled and would enhance respondents' ability to manipulate home market sales to mask dumping. One commenter provides a hypothetical example of this potential for manipulation, highlighting perceived weaknesses both in the range of acceptable prices in the new standard and the fact that, as with the old standard, it would be applied on an affiliate-specific, and not product-specific, basis.17 This combination, according to the commenter, would allow respondents to make sales to an affiliate of products matching to U.S. products at prices significantly below the 98 percent threshold (e.g., at 80 percent of prices to non-affiliates) while still passing the test by selling non-matched products to the same affiliate at prices above the threshold (e.g., 120 percent). This commenter maintains that, while such manipulation is possible under the current test, it would be “dramatically easier” under the proposed 98-102 standard.

17 See also comment 6, below, regarding the affiliate-specific nature of the test.

Another commenter suggests that, if the Department retains the 98-102 standard for investigations, it should at a minimum use a 99.5-100.5 standard for administrative reviews. This approach would place the arm's-length test on a consistent footing with the two percent and 0.5 percent de minimis dumping standards used in investigations and reviews, respectively.

Linking the standards used in the arm's-length test with those used in determining de minimis dumping would, according to this commenter, reduce any perceived arbitrariness over the range selected, thereby lowering its susceptibility to further WTO challenges. It would also reflect the greater potential for manipulation of pricing that can occur after imposition of an order than during the initial period of investigation.

Commenters in favor of an “asymmetrical” test base their arguments on language from a footnote in the Japan Hot-Rolled report providing that, “in finding that the application of the 99.5 percent test was not sufficiently even-handed, we do not suggest that the methods for verifying whether high and low-priced sales to affiliates are ‘in the ordinary course of trade’ must necessarily be identical.”18 Accordingly, these commenters suggest, the Department retains the discretion to tailor an arm's-length test for comparison market sales between affiliates geared toward the primary concern in a dumping context: namely, low-priced sales designed to reduce normal value. These commenters maintain that an asymmetrical test is consistent with the WTO report since it imposes a “bright line” standard for high-priced sales, and is otherwise appropriate because it would retain a broader base of profitable sales made in the normal course of business than the proposed 98-102 percent test. It would also reflect the fact that a different set of circumstances exists for high-priced sales between affiliates, which are priced as such for internal company-specific reasons unrelated to the dumping analysis.

18 AB Report, footnote 113.

Department's Position: We have carefully considered each of the ranges proposed as alternatives to the 98-102 percent test. While some of these ranges (e.g., 99.5-100.5) were previously examined in the course of arriving at the Proposed Modification,19 we have reconsidered all options regarding upper and lower limits of the band in light of the arguments and hypothetical situations provided in the comments received.

19 Proposed Modification at 53340. See also Premable at 27356.

As indicated in the Proposed Modification, the range adopted must account for concerns that the band be neither overly narrow, which would reduce the utility of the test as few affiliates would pass, nor overly broad, which could increase the potential for manipulating normal value through clustering of sales prices to affiliates at the lower end of the band.20 Having considered the alternative suggestions regarding the appropriate band size, we continue to believe that the 98-102 range strikes the best balance in providing a reasonable and predictable means of assessing whether affiliated party sales were made at arm's-length prices. First, contrary to the argument of advocates for the 99.5-100.5 band, we do not believe that extending the lower end of the acceptable range from 99.5 percent to 98 percent provides a significant opportunity for manipulation of normal value, either in investigations or administrative reviews. The range established retains a standard that reasonably ensures that we only use sales between affiliates that are appropriate for use in the dumping analysis, in light of the fact that such sales are inherently suspect unless demonstrated to be in accord with prices negotiated by independent parties. While a particular concern arises regarding low-priced sales between affiliates in an antidumping context, the requirement that such sales, on average, fall within two percent of average prices to non-affiliates will provide a reasonable means of continuing to ensure against such manipulation.

20 Proposed Modification at 53340.

As noted, several commenters suggest that the proposed 98-102 standard will have largely the same effect as a 99.5-100.5 band, arguing that sales prices routinely diverge by more than this range in the normal course of business, and that the ratio can be affected by other factors such as the timing of sales to affiliates and non-affiliates within the period of investigation. In response, we note first that the test recognizes that pricing of individual transactions may vary by more than two percent in the normal course of business. Such sales may still be found to be at arm's length and included in the dumping analysis as long as sales to the affiliate are, on average, within the band. The test in this respect is appropriately geared toward a recognition that, while individual sales transactions may be expected to vary in the normal course of business, systematic underpricing or overpricing between affiliates over the period examined in the dumping analysis is indicative of sales not made at arm's length.

Second, as discussed in more detail in comment 4, below, in comparing prices under the arm's-length test we routinely adjust for many of the factors that give rise to differences in pricing, and allow for additional adjustments, e.g., for differences in quantities, where warranted.

Third, we disagree with suggestions for a broader band (e.g., 90-110) coupled with the proviso that, if the Department finds upon further analysis that sales to affiliates are clustered at the low end of the band, it may then consider, on a case-by-case basis, whether to disregard them under either the fictitious market provision or the ordinary course of trade provision. The fictitious market provision is inappropriate for this analysis; whether or not a fictitious market exists, prices between affiliates may not reflect arm's-length transactions. Applying the fictitious market standard would not adequately serve the purpose of identifying systematic underpricing or overpricing between affiliates. Furthermore, as we have stated in past cases, it is to be used in exceptional circumstances and not employed as a routine part of the Department's analysis.21 Such inquiries typically require an allegation from an interested party and call for analyses based on information that is quantitatively and/or qualitatively different from the information normally gathered by the Department as part of its standard antidumping analysis.22 In addition, the suggested approach is not sufficiently in accord with the concept that sales between affiliates are inherently suspect until demonstrated to be in the ordinary course of trade. In effect, it would reverse this concept for certain sales that in our view are suspect, requiring an additional finding, on a case-by-case basis, that other factors render such sales not at arm's length. Finally, there are serious concerns that any such approach would not be reasonably administrable within the time limits of an antidumping proceeding, particularly given the requirement in most instances for downstream sales once a determination is made that sales between affiliates are not at arm's length.

In light of these concerns, we believe the more appropriate finding is that sales below the 98 percent threshold, but within the proposed broader band, are outside the ordinary course of trade. However, as discussed in comment 4, below, we will consider arguments on a case-by-case basis that such pricing patterns were determined entirely by market factors not captured by the arm's-length test, such as the timing of sales made to affiliated and unaffiliated parties during the period of investigation.

Finally, we disagree with suggestions that an “asymmetrical” test would be consistent with the WTO report in Japan Hot-Rolled or is otherwise appropriate as a test for sales not made at arm's length. While the Appellate Body provided in a footnote that the tests for whether low-priced and high-priced sales to affiliates are in the ordinary course of trade did not necessarily have to be “identical,” this was made in the context of statements that the current test was not sufficiently “evenhanded” to the extent that it “operated systematically to raise normal value, through the automatic exclusion of marginally low-priced sales, coupled with the automatic inclusion of high-priced sales, except those proved, upon request, to be aberrationally high priced.” The Appellate Body's finding that the application of the 99.5 percent test in the Japan Hot-Rolled case violates Article 2.1 of the AD Agreement was based on its assessment that the test “focuses predominantly” on the distortion that results from low-priced sales and does not “take equal account of the possibility that prices ‘above the (99.5 percent) threshold’ can also ‘distort’ normal value.” 23 We believe that automatically disregarding sales to affiliates at prices below the 99.5 percent threshold while automatically including sales at prices up to a 125 percent threshold would be inconsistent with this reasoning.

23 AB Report, paragraph 157.

4. Proposals To Take Into Account Relevant Commercial Circumstances

Numerous commenters proposed that, in assessing whether affiliated party sales were made in the ordinary course of trade, the arm's-length test should not focus exclusively on price, but should take into account all relevant commercial circumstances. Referencing a statement in the Appellate Body report that “price is merely one of the terms and conditions of a transaction,” 24 these commenters suggest that, to the extent the arm's-length test ignores the commercial circumstances pertaining to affiliated and unaffiliated party sales, the new methodology will produce distorted results. Suggestions for factors to examine include level of trade, customer categories, quantities sold, product mix, and any other terms of sale relevant to the transactions under examination.

24 AB Report, paragraph 142.

The suggestions vary with respect to the relationship between these factors and the arm's-length test as described in the Proposed Modification. One proposal is that affiliated party sales should be found within the ordinary course of trade wherever their terms of sale are the same as sales made at the same time to unaffiliated parties. Other commenters suggest that, if a price analysis is conducted, it needs to ensure that any differences in commercial terms and conditions between affiliated and unaffiliated party sales that could impact price are taken into account. A third proposal is that the price analysis should merely establish a rebuttable presumption that sales to an affiliated party are outside the ordinary course of trade, which could be countered by other information demonstrating that such sales were in fact made under the conditions and practices that are normal in the comparison market and, thus, are in the ordinary course of trade.

Department's Position: As with the current test, the new methodology takes account of many of the factors suggested by commenters as relevant to the ordinary course of trade analysis. We take this opportunity to clarify those aspects of the methodology used to establish the affiliate-specific price ratios that relate to this issue.

First, price comparisons between affiliated and unaffiliated party sales that are factored into the affiliate-specific price ratios (which are then applied against the 98-102 percent range) are made at the same level of trade, where appropriate. That is, the arm's-length test generally does not compare prices of sales made at different levels of trade. Any sales to affiliates for which there are no comparable sales to unaffiliated parties at the same level of trade are not used in determining the affiliate-specific price ratios. This does not mean that such sales are automatically disregarded from use in determining normal value, but simply that such sales are not used in determining whether, overall, sales to a given affiliate are made at arm's length. If, based on the sales that are used in the analysis, it is determined that sales to an affiliate were made at arm's length, all sales to the affiliate, including sales without comparable unaffiliated sales at the same level of trade, are included in the comparison market database used to establish normal value.25

25 Under the current test, the same holds true regarding affiliated party sales that have no identical matching unaffiliated party sales. See comment 5 regarding the change in methodology allowing for non-identical comparisons. In both situations, where there are no sales to an affiliate that can be compared with unaffiliated party sales, sales to this affiliate would not be used in the dumping analysis.

In addition to comparing sales at the same level of trade, the test adjusts affiliated and unaffiliated party prices for numerous differences relating to the sales. The adjustments account for, among other things, differences in packing expenses, movement expenses from the original place of shipment, discounts and rebates, and selling expenses that relate directly to the sale at issue. While the Department's questionnaire specifically requests information pertaining to a number of adjustments, it also allows for responding companies to claim additional adjustments for other expenses relating to the sales at issue. Thus, provided that a respondent has accurately reported its claimed differences in circumstances of sale, along with other expenses and price adjustments relating to the reported sales, the arm's-length test will account for such differences between sales to affiliates and non-affiliates.

With respect to the request by numerous commenters that the test also take into account the price effect of any difference between sales to affiliates and non-affiliates in quantities sold, we note that adjustments for differences in quantity are addressed at § 351.409 of the Department's regulations. We do not automatically adjust for differences in quantities, but will do so under the conditions specified in this regulation. Moreover, the fact that the arm's-length test makes comparisons only at the same level of trade should reduce the number of instances in which sales of significantly different quantities are compared. As stated in the preamble to the Department's regulations, based on our experience we believe that differences in quantity are more likely to occur at different levels of trade.26

26Preamble at 27368.

Considering these aspects of the arm's-length test in light of the proposals made, we believe the test adequately accounts for the factors alleged by the commenters to affect price comparisons between sales to affiliated and unaffiliated parties. Beyond this, we are not in a position to speculate on any case-specific circumstances that might warrant additional consideration. Accordingly, we have not changed the test in response to these comments. However, as with other aspects of the Department's dumping analysis, parties have a right to submit comments on the record of a proceeding regarding the adjustments that must be made under the statute in order to ensure a fair comparison. We will consider any comments submitted regarding case-specific adjustments made in the arm's-length analysis in that light. While this does not constitute what one commenter referred to as a rebuttable presumption with respect to the results of the 98-102 percent test, and is not a change in our practice of generally limiting the analysis to pricing as adjusted, as upheld by the Court of International Trade,27 it does provide a fair opportunity to ensure that all appropriate adjustments are made in deriving the affiliate-specific ratios to which the band applies.

Finally, we have not adopted the proposal that equivalent terms of sale for affiliates and non-affiliates should conclusively establish that affiliated party sales are in the ordinary course of trade. This proposal, like others offered, appears to be based on a sale-by-sale analysis.28 As we discuss further below, we do not believe this approach appropriately addresses the question of the nature of the relationship between the affiliates.

28 Comment 6, below, addresses a similar proposal to retain all individual affiliated party sales that are priced at the level of any unaffiliated party sale considered to be in the ordinary course of trade.

5. Treatment of Sales to Affiliated Parties of Products Not Sold to Unaffiliated Parties

Certain commenters suggested that the Department alter the manner in which it treats sales to affiliated parties of products not sold to unaffiliated parties. Currently, as with affiliated party sales that cannot be compared to unaffiliated party sales at the same level of trade (see comment 4, above), sales to affiliates with no identical match to an unaffiliated party sale are not used in determining the affiliate-specific ratios that are compared against the 99.5 percent threshold.

However, such sales are not automatically disregarded for determining normal value; they are retained in the comparison market database if the affiliate passes the arm's-length test based on sales that could be compared with unaffiliated party sales.29

29 A number of comments received on this issue assume that such sales are automatically considered to have “failed” the arm's-length test and, as such, are disregarded in determining normal value. One commenter suggests that, in a variant of the test, the Department makes an adverse assumption and assigns all affiliated party sales of products with no match to unaffiliated party sales a CONNUM-specific ratio of 0 percent. While the commenter does not cite specific cases employing different methodologies, we will ensure that future cases are consistent in their treatment of affiliated party sales with no match to unaffiliated sales.

One commenter suggested that the new test should seek to compare affiliated party sales with sales of non-identical merchandise sold to unaffiliated parties, where there are no comparable sales of identical merchandise. This revision would, according to this commenter, expand the pool of sales used to determine whether pricing to an affiliate was made at arm's-length, and would also be in accord with the Department's regulations on affiliated party sales. These regulations provide that “the Secretary may calculate normal value based on [affiliated party sales] only if satisfied the price is comparable to the price at which the exporter or producer sold the foreign like product to a person who is not affiliated with the seller.” 30 The use of the term “foreign like product” in this context, according to this commenter, indicates that the determination of whether affiliated party sales are made at arm's length is to be established with reference to the price of identical and similar merchandise sold to unaffiliated parties.

30 19 CFR 351.403(c) (emphasis added).

Another commenter suggests an alternative means of including sales to affiliates of products lacking an identical match in the arm's-length analysis; namely, that the Department should assume that such sales were made at 100 percent of the price to non-affiliates, and factor this into the affiliate-specific ratio.

Department's Position: As noted in the “Final Modification to Arm's-Length Methodology” section, above, we intend to match non-identical merchandise where there are no comparable sales of identical merchandise. The reference in the governing regulation to comparing prices of affiliated party sales with sales to non-affiliates of the “foreign like product” makes clear that the price of non-identical merchandise is appropriate for use in determining whether sales were made at arm's length. We expect to be able to make such comparisons where the respondent has provided both total and variable home market costs, typically in cases involving sales-below-cost inquiries. While we will not require total home market costs in non-cost cases solely for purposes of making comparisons in the arm's-length test, we will accept the reporting of such costs on a voluntary basis in such cases. While some commenters maintain that expanding the arm's-length test in this manner will add unnecessarily to the complexity of the analysis, we believe that comparisons to non-identical merchandise can be accommodated within the existing framework for the conduct of antidumping proceedings.

We can see no reason to adopt the alternative proposal for assuming sales with no identical match were made at 100 percent of the price to unaffiliated parties. There is no claim that such an assumption is grounded in fact, and could lead, in effect, to an assumption that affiliated party sales were made at arm's length.

6. Comments Regarding Appropriate Level for Determining Whether Sales are at Arm's Length: by Individual Sale; by Product; by Affiliate

As described in the Background section, above, the Department currently assesses whether sales were made at arm's length at the level of the individual affiliate. Both the methodology used in the 99.5 percent test and the Proposed Modification weight average the product-specific price ratios for all products sold to an affiliated customer to arrive at an affiliate-specific price ratio. If the result shows sales prices to an individual affiliated party are, on average, at least 99.5 percent of the sales prices to all unaffiliated comparison market customers (under the 99.5 percent test) or between 98-102 percent, inclusive, of unaffiliated prices (under the 98-102 percent test), then all sales to that affiliated party may be treated as being made in the ordinary course of trade and may be used in calculating normal value, including any sales made at prices below the threshold. Otherwise, if the affiliate-specific price ratios do not meet these criteria, all sales to the affiliate are generally considered outside the ordinary course of trade, including sales at prices above the 98-102 band.

A variety of proposals were submitted that would allow the arm's-length determination to be made on the basis of individual sale prices or weighted-average prices by product, as opposed to the affiliate-wide determination described above. One commenter suggests that the determination should be done on a sale-by-sale basis. Under this proposal, any individual sale to an affiliated party would be considered as made at arm's-length as long as it is priced at a level equivalent to any comparable sale to an unaffiliated party. According to this commenter, there is no basis to disregard such sales to affiliates where the comparable sale to the unaffiliated party is determined to be in the ordinary course of trade. Another commenter takes the opposite approach, recommending that all individual sales to an affiliate must be found to be priced at levels establishing the arm's-length nature of the transaction in order for any sales to the affiliate to be used.

Another commenter proposes a product-specific approach for each customer, whereby the product-specific average price, as sold to an individual affiliate, must be within the band established for arm's-length sales in order for such sales to be used in determining normal value. According to this commenter, a product-specific approach to determining sales in the ordinary course of trade is more in line with the rest of the statutory framework for determining normal value, which is centered on the price of the foreign like product, i.e., a model-specific hierarchy of merchandise for comparison. Yet another commenter views “foreign like product” broadly (akin to class or kind) and contends that the arm's-length analysis should focus on this broad basis, since a corporation's pricing decisions are rarely, if ever, made on a CONNUM-specific basis.

Department's Position: While we have carefully considered each of these alternative proposals for the appropriate level at which to determine whether affiliated party sales are made within the ordinary course of trade, we have decided to retain our normal practice of making this determination on an affiliate-wide basis. While certain individual sales and products that would pass the test on their own may be excluded under this approach, and vice-versa, an affiliate-wide analysis does not systematically bias the arm's-length determination in one direction or another. Our reasons for preferring that the determination of whether sales are made at arm's-length be conducted at the level of the individual affiliate were set forth in the investigation underlying the AB Report in Japan Hot-Rolled:

With respect to NKK's concern of applying the arm's-length test on a customer basis, we note that the question underlying the arm's-length test is whether affiliation between the seller and the customer has (in general) affected pricing. Because affiliation is the result of relationships between firms, the focus of the arm's-length test is the customer, not a particular product. For this reason, the Department makes one up-or-down call on pricing to an affiliated customer: Either there is arm's-length pricing or there is not. However, under NKK's [product-specific] approach, affiliation could be found to matter for some connums, but not for others, even though the customer in both cases is the same.31

This aspect of the Department's methodology was not at issue before either the WTO Panel or the Appellate Body in Japan Hot-Rolled, and we do not find sufficient reason to depart from the current approach in adopting the new methodology. Moreover, abandoning the focus on the pricing relationship with the affiliate would fundamentally alter the nature of the test and introduce many complicated questions about other aspects of the test as well as use of downstream sales.

While the explanation cited above pertains to requests for a product-specific approach, its rationale applies as well to requests for a sale-specific approach. In particular, the proposal to retain an individual affiliated party sale if priced at a level equivalent to a comparable sale to an unaffiliated party would require that we ignore the potential for manipulation that results from the affiliation. Under this approach, affiliated party sales could be priced on average far below market price and still be retained for determining normal value as long as they are made at the price of the lowest individual sale price to an unaffiliated customer. The adoption of this method for determining arm's-length sales would, therefore, not establish that affiliated party sales are appropriate for use in the dumping analysis.

7. Proposals for Treatment of Merchandise “Consumed” by Affiliates, as Distinguished from Merchandise Resold

Certain commenters submitted proposals for differentiating between sales of the foreign like product “consumed” (not resold as subject merchandise) by an affiliate and sales to an affiliate that are resold as subject merchandise.32

32 Sales by an affiliate of subject merchandise are referred to in the Preamble to the Department's regulations, and in this notice, as “downstream sales.” Preamble at 27356. Sales from the respondent company to the affiliated reseller are described in this notice as “upstream sales.”

One commenter suggested that, when sales to affiliated parties are not resold but are instead “consumed,” the standard used in the arm's-length test should be different. In particular, this commenter suggests dropping the requirement that sales, on average, be within the band and allowing any individual sales within the band to pass the arm's-length test. This commenter suggests that the broader requirement that pricing overall to the affiliate be within the band is less relevant where an affiliate consumes the merchandise by producing and selling a product that is outside the scope of the order.

Another commenter, while proposing that the Department automatically request downstream sales in the case of resales (see comment 1, above), suggested applying an arm's-length test in the limited instance of sales of merchandise “consumed” by an affiliate. Alternatively, a third commenter, while agreeing that the Department should automatically request downstream resales, suggested eliminating sales of merchandise consumed by an affiliate from the analysis. This commenter suggests that the Department's concern over a methodology that leads to fewer comparisons based on the preferred methodology (home market sales) is overstated, given the U.S. Court of Appeals ruling in Cemex S.A. v. United States with respect to matching to similar merchandise 33. Further, according to this commenter, disregarding all sales to affiliated consumers would not be contrary to the Department's regulations or Congressional intent, since the former must be read in light of the general suspicion of affiliated party sales encompassed in the Statement of Administrative Action accompanying the Uruguay Round Agreements Act (SAA), and the latter anticipates that Commerce, “in general,” will not rely on sales to affiliates in determining normal value.34

33 133 F.3d 897 (Fed. Cir. 1998) (citing also DOC Policy Bulletin 98.1, which specifies that, henceforth, when all sales of a particular home market model are below cost, instead of automatically resorting to constructed value to determine normal value, the Department will first attempt to use prices of a non-identical model that remains above cost.).

34 Citing H.R. Rep. No. 103-826, at 82 (1994).

Department's Position: Consistent with our current practice and with § 351.403(c) of the Department's regulations, we intend to continue using sales to affiliates, whether of merchandise consumed or resold, to determine normal value where such sales are shown to be at arm's length. The comments submitted proposing different treatment of sales of merchandise consumed by affiliates do not provide sufficient reasons to depart from this practice.

With respect to the proposal that individual sales of merchandise consumed by affiliates should be found to have passed the arm's-length test whenever such sales prices are within the established price band, no underlying rationale was provided for this difference in treatment other than to claim that the affiliate-wide pricing requirement “makes no sense” as applied to affiliated consumers. We do not believe that there is sufficient reason to apply a different standard with respect to such sales. Whether the affiliate consumes or resells the subject merchandise, the question posed is the same and the test applied should be the same.

With respect to the suggestions that we should automatically disregard sales to affiliated consumers, or that we should apply an arm's-length test only to such sales while automatically disregarding sales to affiliated resellers, our response to comment 1, above, which provides our reasons for applying an arm's-length test to upstream sales to resellers (as opposed to automatically disregarding such sales), applies as well to applying an arm's-length test to sales to affiliated consumers and using such sales to establish normal value when they are demonstrated to be at arm's length. There is insufficient reason to apply different methodologies to these two groups of sales to affiliated parties. We also note that, to the extent there is ambiguity regarding reporting requirements for these two types of affiliated party sales, we intend in the future to make clear that sales to affiliates, whether consumers or resellers, will be used in the dumping analysis where shown to be at arm's length based on the 98-102 price band methodology.

8. Other Methodological Proposals for Determining Sales at Arm's Length

Other proposals made regarding the arm's-length test include:

• A proposal by the commenter who recommended a sale-by-sale approach to use, as an alternative in the event the sale-by-sale approach is not adopted, the quantity-based test described as an alternate option in the Proposed Methodology. Under this option, affiliated party sales would be found within the ordinary course of trade as long as a sufficient quantity of comparable sales to non-affiliates were priced above and below the affiliated price. This commenter believes the Department's concerns over this option, centering on complexity, implementation, and uncertainty over the appropriate level of quantities needed to pass the test, are overstated, and provides examples of how it could be implemented without undue difficulty.

• A suggestion to apply the arm's-length test only when common ownership between affiliates reaches a level of 50 percent or more. This approach, the commenter suggests, will more accurately reflect those situations where actual control exists sufficient to give rise to concerns over manipulation of pricing.

• A request for clarification of the methodology with respect to a single affiliate with multiple customer codes in the reported home market database, due to, for instance multiple billing addresses. This commenter requests that Commerce adopt in all cases the methodology used in Certain Cold-Rolled Carbon Steel Flat Products from France,35 where it “collapsed” multiple customer codes and performed the arm's-length test on an aggregate basis.

35 67 FR 31204 (May 9, 2002).

• A request that the Department explain how a band approach, containing an upper-level ceiling on affiliated party prices, is consistent with the test applied for valuing inputs sold between affiliates, as prescribed at sections 773(f)(2) and (3) of the Act. The commenter believes any differences could be interpreted as reflecting inconsistent definitions of the term “foreign like product,” one relating to price-based normal value (arm's-length test) and one relating to constructed value (the provisions of the Act cited above). This commenter requests that this explanation be made with reference to a recent remand by the Court of International Trade (as directed by the Court of Appeals for the Federal Circuit), in which the Department was asked to clarify why it uses different definitions of the term “foreign like product” for price-based and cost-based calculations.36 The commenter also references the recent determination in Certain Cold-Rolled Carbon Steel Flat Products from France,37 where, the commenter maintains, the arm's-length and cost valuation issues were joined, since a transaction that failed the current arm's-length test could be evaluated under the major input rule for use in determining input costs.

36FAG Italia v. United States, 291 F.3d 806 (CIT 2002).

37 67 FR 31204 (May 9, 2002).

• A request for clarification that, when the Department finds an insufficient volume of sales to unaffiliated purchasers, it will continue its practice, as noted in the preamble to the Department's regulations,38 of disregarding affiliated party sales.

38 Preamble at 27355.

• A request that the Department explicitly place on respondents the burden of proof for establishing that affiliated party sales are in the ordinary course of trade, and clarify that all such sales will be disregarded until this burden of proof is met.

• A request for clarification regarding whether all affiliated party sales that fail the arm's-length test will continue to be excluded from the CEP profit calculation. This commenter notes that the current practice is centered on low-priced sales falling below the 99.5 percent threshold,39 and asks whether high-priced sales above the 98-102 band would also be excluded. This commenter suggests that “capping” the CEP profit calculation by excluding high-priced sales that fail the arm's-length test would conflict with the preamble to the Department's regulations and with its statutory obligations.40

Department's Position: We respond to each item, in turn. With respect to the suggestion favoring the use of a quantity-based test, our concerns with this test, as set forth in the Proposed Modification, remain despite the suggestions by the commenter. These include, in addition to the general complexity and implementation concerns cited by the commenter, concerns over whether to apply the test by affiliate or for all affiliates combined by product, and questions as whether this might not be an overly narrow definition of the “normal” price range of sales to affiliated parties. We continue to believe the 98-102 percent band provides a more reasonable, predictable, and administrable test.

40 Citing Preamble at 27354 (“the statute does not authorize a cap on the amount of profit deducted from CEP”).

With respect to the suggestion that we only apply the arm's-length test in situations involving 50 percent or greater cross-ownership between affiliates, as we stated in the preamble to the Department's regulations, we believe an arm's-length analysis is appropriate “whenever there are transactions between parties within the meaning of section 771(33) of the Act. Therefore, if two parties are affiliated, any transactions between them are subject to paragraphs (c) and (d) of 19 CFR 351.403, allowing use of transactions between affiliated party sales only if found to be made at arm's length.”41 We have not changed our view in this regard.

41 Preamble at 27356.

With respect to the issue of multiple customer codes for a single affiliate, we confirm that we intend to aggregate sales to a single affiliate for purposes of the arm's-length test.

With respect to the comment regarding a perceived inconsistency between the arm's-length standard as set forth in the Proposed Modification and the statutory requirements for valuing affiliated party inputs (sections 773(f)(2) and (3)), we disagree that the arm's-length test must apply the standard or test used for valuing affiliated party inputs. These tests are employed for different purposes in analytically distinct areas of the dumping analysis. As for the CIT remand cited by the commenter, we note that this remand concerned a separate issue relating to the statutory definition of “foreign like product” as the term is used in various parts of the antidumping statute. The commenter did not explain the relevance of this court decision, nor do we believe that the modification of the arm's-length test depends on or implies any application of different definitions of the term “foreign like product.”

With respect to the request for clarification on our intended practice regarding insufficient unaffiliated party sales, we confirm that, consistent with the preamble to our regulations, affiliated party sales will not be used where there are insufficient unaffiliated party sales for use in the arm's-length test.

With respect to the comment on burden of proof, we believe the Department's regulations speak for themselves, namely that affiliated party sales will be used only where the Department is satisfied that the price to an affiliate is comparable to unaffiliated prices.42

42 19 CFR 351.403(c).

With respect to the request for clarification regarding affiliated party sales used in determining CEP profit, the Department's current practice is to exclude non-arm's-length sales and include downstream sales of the same merchandise where such sales are reported. We have not changed that policy.

9. Treatment of Downstream Sales

Aside from the methodology used to determine whether sales to affiliates are made in the ordinary course of trade, numerous commenters submitted proposals regarding the use of downstream sales by affiliated parties where upstream sales fail the arm's-length test.43

43 See page 7, above, and Proposed Modification, 67 FR at 53340, for a summary of the Department's practice concerning downstream sales.

Several commenters maintain that the 98-102 percent test, if adopted, will increase reliance on downstream sales and will, as a result, create greater potential for facts available given the frequent reluctance on the part of affiliated resellers to provide information regarding downstream sales. One commenter suggests that, in order to balance this likely effect, the current “five percent” exemption for reporting downstream sales 44 should be broadened to a “20 percent” exemption, analogous to the rule for determining whether “substantial quantities” of sales were made below cost. Under this approach, the Department would not request downstream sales for any respondent whose comparison market sales to affiliates comprise less than 20 percent of the value (or quantity) of all comparison market sales of the foreign like product. Alternatively, this commenter suggests applying the five percent test on a different basis than that currently used. Specifically, instead of determining whether sales to all affiliates are less than 5 percent of total sales of the foreign like product, the Department would under this proposal determine whether only those sales of merchandise to affiliates that (1) failed the arm's-length test and (2) are resold (not consumed) are less than five percent of all sales of the foreign like product, and would not request any downstream sales if this standard was met.

44See § 351.403(d) of the Department's regulations, specifying that the Department generally will not calculate normal value based on downstream sales where sales of the foreign like product to affiliated parties constitute less than five percent of the total value (or quantity) of the respondent's sales of the foreign like product in the market in question.

Another commenter suggests that the Department should not request downstream sales under the following circumstances: (1) Where sales to an individual affiliate constitute less than one percent of all comparison market sales of the foreign like product, regardless of whether the five percent exemption is met in the aggregate; (2) where respondents demonstrate that downstream sales prices are lower than upstream sales prices, provided they agree that upstream prices would be used in determining normal value; and (3) where resales are made in small quantities or at different levels of trade than the other comparison market and U.S. sales.

Other commenters propose stricter reporting requirements and expanded coverage of downstream sales. One suggestion is to eliminate or lower (to 0.5 percent) the five percent exemption for reporting downstream sales in order to counteract what is likely to be a larger amount of sales disregarded—particularly high-priced sales—under the revised test compared with the 99.5 percent test.

Another commenter recommends a different standard be applied in investigations and reviews regarding the respondent's obligations to report downstream sales. This proposal would allow for downstream sales to be disregarded in investigations when a respondent demonstrates to the Department that it cannot obtain such sales, but would require respondents to include, as a condition of sale to affiliates, a requirement that such affiliates provide information on their sales in antidumping reviews. This proposal would have the Department issue a statement of practice pertaining to administrative reviews providing, among other things, that “[i]f a respondent claims that it is otherwise unable to submit the downstream sales data of an affiliated seller, the Department will apply adverse facts available.”

Finally, another commenter asks that the Department make clear that it will apply an arm's-length test to downstream sales, where such sales are sold to a second-level affiliate.

Department's Position: We have not changed our requirements regarding downstream sales based on these suggestions. With respect to the five-percent threshold for reporting downstream sales by affiliates set forth at § 351.403(d) of the Department's regulations, the proposals to raise or to lower this standard do not address the proposed change in the arm's-length test itself. In any event, we do not believe that a change in the regulations is warranted by these suggestions.

The adoption of the five-percent threshold was based on the premise “that imposing the burden of reporting small numbers of downstream sales often is not warranted, and that the accuracy of determinations generally is not compromised by the absence of such sales.”45 We continue to believe that a five-percent standard normally balances these considerations appropriately. The proposed 20 percent standard is too high to warrant confidence that exceptions to reporting downstream sales based on this threshold would not compromise the accuracy of our determinations. On the other hand, the proposed 0.5 percent threshold is based on a misplaced analogy to the de minimis dumping standard in administrative reviews. We do not believe that exempting downstream reporting where a respondent sells less than five percent of the foreign like product to affiliates, and basing normal value on other sales or on constructed value, gives rise to concerns about the accuracy of our determinations.

45Preamble at 27356.

With respect to the proposal that the sales of the foreign like product used to determine whether the five-percent threshold is met should be narrowed to only those that fail the arm's-length test and are not consumed by the reseller, we continue to believe that the five-percent standard, as stated in the regulation, is appropriate. The assessment by the Department, in the preamble to the regulations, that excusing reporting of downstream sales would not compromise the accuracy of its determinations was predicated on a finding that the respondent's total sales of the foreign like product to affiliates were less than five percent of all sales of the foreign like product. While we may determine in certain cases that it is appropriate to excuse downstream reporting along the lines suggested by this commenter, we do not believe the proposal could be applied generally without compromising accuracy. For similar reasons, we also disagree with the proposal to exempt individual affiliates from reporting downstream sales based on the proposed “one-percent” standard, though we may exempt reporting of such sales in individual cases. In our view, the five-percent standard, based on a company's aggregate sales to all affiliates, provides a reasonable test for whether to exempt a respondent from downstream reporting.

Regarding the proposal that we exempt respondents from downstream sales reporting where they can show such sales were made at prices below the relevant upstream sale and agree to use the upstream sale in its place, we do not believe it would be appropriate to address such hypothetical situations. We will do so if and when such issues are raised in a case.

Regarding the proposal that we exempt downstream sales made at different levels of trade than other comparison market sales or U.S. sales, such an exemption could conflict with our practice of matching U.S. and comparison market sales at different levels of trade in the absence of comparable sales at the same level of trade. As such, it could inappropriately reduce the number of price-based comparisons in the dumping analysis. However, as stated in the Preamble to the Department's regulations, the Department does not believe it necessary or appropriate to require the reporting of downstream sales in all instances, though the Department will require a respondent to demonstrate in each segment of a proceeding that the reporting of downstream sales is not necessary.

Regarding the proposal that we exempt downstream sales made in small quantities, as noted above, we believe that, as a general matter, the correct level at which to determine whether sales are so small as to warrant not reporting is at the level of the upstream sale between affiliates. This is the level at which the five-percent threshold is applied. Any other requests for exemptions from reporting based on a small quantity of sales would need to be considered on a case-by-case basis.

Regarding the proposal that we apply different standards in investigations and administrative reviews regarding a respondent's claim that it cannot submit downstream sales data, we disagree with the suggestion that we automatically resort to adverse facts available in administrative reviews. We will continue to determine, based on the facts of each case, the extent to which an individual respondent has failed to cooperate by not providing requested information. This approach is consistent with our statutory and WTO obligations regarding the use of adverse facts available. While we do not disagree in principle with the suggestion that a respondent who has participated in an initial investigation may be expected in subsequent administrative reviews to have gone to greater lengths to secure such data, any finding of uncooperativeness must be made with reference to the particular facts of each segment of the proceeding.

Finally, we intend to continue our practice of applying the arm's-length test to any sales made to affiliated parties, including downstream sales to second-level affiliates.

10. Proceedings/Entries Governed by Revised Arm's-Length Test

One commenter argued that the Department's proposed timetable for applying the new methodology with respect to other proceedings and segments of the Japan hot-rolled proceeding other than the investigation (i.e., reviews initiated on the basis of requests received on or after the first day of the month following the date of publication of the Department's final notice of that new methodology) would contravene section 129(c) of the URAA (19 U.S.C. 3538(c)). That section, the commenter claimed, requires that such changes be implemented only with respect to entries made, not proceedings requested or initiated, on or after the implementation date.

Department's Position: The Department's timetable for applying its new methodology beyond the Japan hot-rolled investigation is legally permissible and appropriate. Specifically, contrary to the commenter's assertions, section 129 of the URAA applies only to changes implemented with respect to the segment of the proceeding that gave rise to the WTO challenge. That is, section 129 of the URAA applies only to changes made as a result of “an action by the administering authority in a proceeding under title VII * * * [that] is not in conformity with the obligations of the United States under the Antidumping Agreement * * *.” Section 129(b)(1) (emphasis added). Therefore, the timing provisions of section 129(c) (which deal with implementation under section 129) also apply only to changes to measures “as implemented” with respect to the segment of the proceeding which served as the basis for the WTO challenge.

In contrast, changes in agency practice (such as this change with respect to the arm's-length test) made in connection with an adverse WTO panel or Appellate Body are governed by a different provision of the URAA. See section 123(g) of the URAA. Section 123 has its own “effective date of modification” provision (section 123(g)(2)). This provides for a single limitation on the effective date: “the final rule or other modification may not go into effect before the end of the 60-day period beginning on the date on which consultations [with the appropriate congressional committees on the proposed content of the modification] begin [unless the President determines that an earlier effective date is in the national interest].” Because this new methodology will “go into effect,” for other proceedings and other segments of the Japan hot-rolled proceeding, after the 60-day period will have ended, the timetable for implementation is lawful. Thus, Commerce's decision to apply its new methodology prospectively, beginning with segments of proceedings initiated on or after November 23, 2002,46 is proper.

46 See “Timetable” section, below.

The fact that, under the proposed implementation timetable, the new arm's-length methodology “would affect” margins on imports which entered prior to the implementation date, but for which the margins would be calculated in a review initiated after the implementation date, does not compel the result urged by the commenter. The commenter's broad reading of the legislative history of section 129 does not provide authority for extending the effective date provision of that section to areas covered instead by section 123, especially given that section 123 has its own, different, provision that controls such a new methodology.

It is significant that section 123 uses the term “go into effect” (which refers to the beginning of use of a methodology), rather than language of section 129, which refers to which entries will be affected. There is no legislative inconsistency with the use of a new methodology “affecting” entries made prior to the date on which the methodology changed. Indeed, except where otherwise specified (as in section 129 with respect to the actions of the Department in the contested segment of the proceeding), the Department's practice has normally been to begin application of a new methodology with respect to segments of proceedings requested or initiated after a given date, rather than applying different methodologies within the same segment of the proceeding. See, e.g., section 291(a)(2) of the URAA (the URAA amendments shall “take effect” on the date the WTO Agreements enter into force and “shall apply with respect to” reviews initiated pursuant to a request filed after such date); 19 CFR 351.701 (regulations implementing the changes made by the URAA “apply to all administrative reviews initiated on the basis of requests made after June 18, 1997” (the “effective date” provided in the notice of final rule published in the Federal Register on May 19, 1997).

One commenter contended that the change to the arm's-length test is tantamount to creating a rule as set forth in 5 U.S.C. 553 of the Administrative Procedures Act (APA). More specifically, citing Carlisle Tire & Rubber Co. v. United States, 10 C.I.T. 301, 305-06 (1986) (Carlisle), the commenter suggests that the Department's notice and comment procedures should comply with those set forth under APA. In this commenter's view, the 15 day notice and comment period provided by the Department falls short of the 60 day period required under the APA.

Department's Position: As discussed above, the revised arm's-length methodology has been developed taking into account the finding in the AB Report that the application of the 99.5 percent arm's-length test in the underlying investigation was inconsistent with the obligations of the United States under Article 2.1 of the AD Agreement. As a result, the revised arm's-length test represents a methodology consistent with section 2.1 of the AD Agreement in accordance with the AB Report. Unlike the methodologies contested in Carlisle, our arm's-length methodology does not create an inflexible rule. In short, the Department's arm's-length methodology is not subject to the APA because, unlike the methodology underlying Carlisle, it only interprets the law.

The Department also notes that section 123(g) does not provide for application of the APA within the context of the remediation of the Department's practice. Section 123(g) only requires, in relevant part, that the Department provide the public with the proposed change, an explanation of how that change would implement the panel or Appellate Body report, and an opportunity for comment. Consequently, under a plain language reading of section 123(g), the Department's announced change in practice would not be subject to the notice and comment procedures of the APA.

Timetable

This methodology will be used in implementing the Japan Hot-Rolled findings pursuant to section 129 of the URAA. In accordance with section 129(c)(1) of the URAA, the section 129 determination in Japan Hot-Rolled will establish new cash deposit rates for all producers for whom the investigation rates are still applicable and will apply with respect to unliquidated entries of the subject merchandise which are entered, or withdrawn from warehouse, for consumption on or after the date on which the United States Trade Representative directs the Department to implement that determination. With respect to other proceedings and other segments of the Japan hot-rolled proceeding, the new methodology will be applied in all investigations and reviews initiated on or after November 23, 2002.47

47 This is a slight modification of the Timetable as set forth in the Proposed Modification. Previously, the Timetable anticipated that the implementation of this practice would go into effect with respect to investigations initiated on the basis of requests received after the publication date of this notice, and for reviews initiated on the basis of requests received in the month following publication of this notice. Upon further consideration, we have determined that it is appropriate to employ this methodology in all investigations and reviews initiated on or after November 23, 2002.

NOAA's Office of Ocean Exploration (OE) is seeking pre-proposals and full proposals for grants and cooperative agreements and other financial collaborations in support of OE's mission to expand our knowledge base of the ocean's physical, chemical and biological characteristics, processes, and resources and to learn more about our maritime cultural heritage by means of experiments and expeditions to unknown, or poorly known oceanic and Great Lakes regions. With an emphasis on stimulating integrated, interdisciplinary efforts and institutional collaborations, the goal is to foster a program in ocean exploration in which discovery and the spirit of challenge are the cornerstones.

DATES:

Pre-proposals are required and must be received in the NOAA Office of Ocean Exploration by close of business (U.S. Eastern Time Zone), December 16, 2002, and full proposals by close of business, January 29, 2003. In the event these dates fall on a weekend or holiday, the application deadline shall be the first working day after the date specified. E-mail submissions of the pre-proposals and proposals are strongly encouraged. Facsimile pre-proposals and/or facsimile proposals will not be accepted.

Margot Bohan, OE Science Program Coordinator, or Randi Neff, OE Program Grants Coordinator, NOAA Office of Ocean Exploration, 301-713-9444, facsimile 301-713-4252 or submit inquiries via e-mail to the Frequently Asked Questions address: oar.oe.FAQ@noaa.gov. A copy of this notice, as well as ancillary information, will be posted on the Ocean Explorer Website which can be found at: http://www.explore.noaa.gov.

In June 2000, the Secretary of Commerce was given a Presidential directive to convene a panel of leading ocean explorers, scientists, and educators to develop a national strategy for exploring the oceans. Upon completion of its undertaking, the Presidential Panel presented its recommendations in the report entitled, Discovering Earth's Final Frontier: A U.S. Strategy for Ocean Exploration (Presidential Panel Report) (http://oceanpanel.nos.noaa.gov). Among them was a recommendation to designate a lead Federal agency to guide a national program in ocean exploration. NOAA was selected and established the Office of Ocean Exploration in 2001.

Through implementation of the vision of the Presidential Panel, OE seeks to challenge our Nation's scientists to explore the frontiers of ocean science and technology for the purpose of discovery and the advancement of knowledge of the oceans and their resources.

B. Program Mission

The mission of OE is to expand our knowledge base of the ocean's physical, chemical and biological characteristics, processes and resources and to learn more about our maritime cultural heritage by means of experiments and expeditions to unknown, or poorly known oceanic and Great Lakes regions.

III. Program NoticeA. Notice Objectives

The purpose of this announcement is to invite the submission of pre-proposals and full proposals for grants and cooperative agreements and other financial collaborations whose objectives are to explore the ocean and map its resources, to gain new insights about its physical and chemical processes and its living and non-living resources, including maritime cultural heritage, and to contribute to the advancement and utilization of ocean technology.

B. General Guidance

Themes. In 2002, OE conducted eight U.S. regional workshops to engage a broad and diverse representation of ocean scientists, explorers, and educators from public, private and commercial organizations to help define and prioritize ocean exploration objectives for the coming years. A number of exploration themes, which refine and complement those of the Presidential Panel Report, emerged as a result. Persons submitting proposals may elect to address these preferred themes, which are listed below (in no order of priority).

Geographic Areas of Interest. OE is especially interested in, but will not limit its consideration to, proposals for exploration within the U.S. EEZ and other areas of U.S. jurisdiction, including the Great Lakes. Additional areas of geographic interest include the Polar Regions and the following regions where OE anticipates being able to provide the noted resources:

Investigators with non-OE-funded shiptime, projects, or other resources may wish to propose supplementing them by the addition of tasks or objectives that are consistent with (and are, therefore, eligible for funding by) the OE program.

Establishment and support of facilities and infrastructure are not OE priorities. Proposals focused solely on ocean-climate issues are also not an OE priority.

C. Proposal Requirements

Outreach & Education. A key recommendation of the Presidential Panel Report is “reaching out in new ways to stakeholders, to improve to the literacy of learners of all ages with respect to ocean issues.”

All funded Principal Investigators (PIs) and collaborators will be required to cooperate with OE in facilitating education and outreach activities. This may entail development of lesson plans, professional development for teachers, accommodation of a teacher/educator-at-sea, and at-sea media participation.

Data Management. In accepting full or partial OE sponsorship, each PI is obligated to meet certain data management requirements including:

1. PIs will provide metadata, e.g., number and type of data, and description of the data collected immediately upon completion of a project cruise. Other data or data products may also be required at the discretion of the OE Director.

2. PIs will provide OE and the public access to the acquired data sets collected as soon as practical and, in no case, later than one year following the data of collection, unless an extension is specially granted by OE.

Proposals should include a description and justification of data funding needs and explain how data will be made accessible or available to the public.

3. NOAA's ocean Explorer Web site (http://oceanexplorer. noaa.gov) is the principal vehicle for chronicling and documenting all missions supported by OE. PIs and mission participants will be required to provide material (i.e., throughout the mission) for this site such as cruise tracks, preliminary bathymetry, characterization of data collected, photographic or other images from the mission, and participants interviews, essays, or written materials. Funded PI's will be required to cooperate with the NOAA Ocean Explorer website team which may include accommodation of a NOAA web team member. (See Ancillary Information at: http://explore.noaa.gov).

IV. Funding Availability

FY2003 funding for this program has not yet been appropriated. Proposals are encouraged for collaborations and explorations ranging from the tens of thousands of dollars to funds appropriate for up to two months of expeditionary exploration work. Multi-year proposals will be accepted, although the principal focus in the first several years of the OE program will be on one-year projects and expeditions. Out-year funding will be contingent upon factors including successful accomplishment of prior-year objectives as well as availability of program funding and other relevant resources.

The funding instrument of extramural awards may be a grant or cooperative agreement. A cooperative agreement is appropriate when substantial NOAA involvement is anticipated. This means that the recipient can expect substantial agency collaboration, participation, or intervention in project performance. Substantial involvement exists when: responsibility for the management, control, direction or performance of the project is shared by the assisting agency and the recipient; or the assisting agency has the right to intervene (including interruption or modification) in the conduct or performance of project activities. NOAA will make decisions regarding the use of cooperative agreements on a case-by-case basis. NOAA encourages the participation of NOAA scientists in collaborative efforts. Applications determined to be for the acquisition of property or services for the direct benefit or use of the U.S. government will evaluated for funding under agency contract procurements outside of this announcement.

There is no guarantee that sufficient funds will be available to make awards for all qualified projects. Publication of this Notice does not obligate NOAA to award any specific project or to obligate all or any part of the available funds.

V. Eligibility

Eligible applicants are institutions of higher education, other nonprofits, commercial organizations, international organizations, state, local and Indian tribal governments. Applications from non-Federal and Federal applicants will be competed against each other. (Note: NOAA/OE spent approximately 70 percent of Fiscal Year 2002 funds outside the agency.) Proposals selected for funding from non-Federal applicants will be funded through a project grant or cooperative agreement under the terms of this notice. Proposals selected for funding from NOAA scientists shall be affected by an intra-agency fund transfer. Proposals selected for funding from a non-NOAA Federal agency will be funded through an inter-agency transfer. Please Note: Before non-NOAA Federal applicants may be funded, they must demonstrate that they have legal authority to receive funds from another Federal agency in excess of their appropriation. Because this announcement is not proposing to procure goods or services from applicants, the Economy Act (31 U.S.C. 1535) is not an appropriate legal basis.

VI. Project Funding Considerations

Ideally, proposals should be interdisciplinary, involve legitimate collaborations with other institutions or agencies, and have contributory funding. An interdisciplinary approach will likely to result in a greater breadth of science product. Collaborations will enhance the proposal through the contribution of scientific or technical expertise, funds, personal, shiptime, and/or equipment. Although cost sharing is not required, it is encouraged. Contributory funding will leverage OE funds.

The geographic area of interest of a proposal will also be a project funding consideration.

Communication of research through outreach and education is a critical element of the programs, projects and activities that OE supports. Proposals should reflect a willingness to facilitate and participate in such activities.

OE may share proposals with other funding entities, such as the agencies of the National Ocean Partnership Program, and other NOAA funding sources, to ensure the most appropriate funding (see Section VIII.B.).

VII. Guidelines for Submission

There will be a two-stage competition with pre-proposals utilized for an initial selection process. Full proposals will be solicited from investigators who submit successful pre-proposals. An approved pre-proposal is a requisite for submission of a full proposal. All pre-proposals and proposals must conform with the requirements published in this notice. Pre-proposals will be judged in terms of their consistency with the Presidential Panel Report and the Ocean Exploration program's themes (see Section III.B.). The cost of the proposed activities relative to available program funds will also be taken into consideration.

A. Preliminary Proposals

A pre-proposal should include a summary of the proposed research, project priorities, a statement of objectives, and a description of how the proposed project is in keeping with the OE mission described in this notice. The area of proposed operations must be clearly defined (e.g., including latitude, longitude, and depth). Required platforms or other critical assets should be identified. The pre-proposal should make clear any time or other operational constraints, especially with regard to field operations. Any auxiliary funding sources for the proposed project should be identified. Pre-proposals should also identify all collaborators and include a summary budget. Pre-proposals may not exceed two typewritten single-sided pages, using 10-point font or larger. All pre-proposals must also include a completed pre-proposal cover page (available electronically at http://explore.noaa.gov) (see FOR FURTHER INFORMATION CONTACT to request a hard copy version). Electronic submission of pre-proposals to oar.oe.submissions@noaa.gov is strongly encouraged. See ADDRESSES to submit a hard copy submission.

B. Proposals

All proposals must include the following, packaged in the order listed here: (a) A completed proposal cover page (available electronically at http://explore.noaa.gov); (b) a maximum half-page executive summary; (c) a maximum 15-page description of the entire project (including work plan, schedule, and collaborations); (d) a summary of relevant current funding support; (e) brief resumes for each investigator, including recent relevant publication references, (f) a detailed budget (including any ship and equipment costs) and budget narrative (including justification for non-standard items) and (g) all government forms required for submission (see Section VII.C.). All pages should be single-sided, single—or double-spaced, typewritten margin in a minimum 10-point font on a 81/2″ x 11″ page. Tables and visual materials, including charts, graphs, maps, photographs, and other pictorial presentations are to be including in the 15-page limit. The signature page, executive summary, references/literature cited, budgets and budget notes, current and pending support sections and resumes need not be counted against the 15-page limit. All information needed for review of the proposal should be included in the main text, e.g., not submitted as appendices.

The proposal must clearly explain each participant's efforts and their respective requests for OE funds, as well as any cost-sharing. Separate budgets within the single proposal must be provided if more than one funding action is anticipated (e.g., if funds are to be allocated to more than one institution or agency).

Forms must be submitted in triplicate, each with original signatures, along with any electronic submissions, by the closing timed identified in this announcement. All required forms (see Section VII.C.) must be mailed to OE. With the exception of these forms, electronic submission of proposals to oar.oe.submissions@noaa.gov is strongly encouraged and will have a positive influence on the processing time for such proposals. Investigators who elect to submit hard copies of their proposal are required to submit 3 copies but are encouraged to submit 15 copies, particularly if they wish reviewers to receive included color graphics, glossy photographs, or other unusual materials. For further information, see Announcement of Opportunity: Application Kit at http://www.explore.noaa.gov/ or see ADDRESSES and/or FOR FURTHER INFORMATION.

Proposals and required forms received after the deadline, or proposals that deviate from the format described in this Notice will not be accepted.

The OE Director will make the decisions regarding pre-proposal acceptance or rejection. These decisions will be based on the following factors: (1) Is the proposal consistent with the Presidential Panel Report and OE mission?, (2) Does it touch on the OE themes and project funding considerations?, (3) Are the costs of the proposed activities relative to available program funds?

B. Proposals

Proposals will be evaluated and rated individually by (a) ad hoc independent peer review and/or by (b) independent peer panel review using the following equally weighted criteria. In general, the pool of reviewers will be composed of scientists, engineers, social scientists, economists, outreach specialists, and resource managers as appropriate to the scope of proposals received in response to this announcement.

Scientific and Technical merit: The scientific and/or technical value of the work proposed, its probability of success, and the applicant's scientific and/or technical capabilities to undertake the proposed work.

Program Relevance: The degree to which the proposal addresses and supports Ocean Exploration's mission and notice objectives (see Section II and Section III.A.).

Usability of results: The anticipated scientific and/or technical impact of project results on the advancement of knowledge within the field(s) of endeavor.

All proposals submitted for funding via a grant or cooperative agreement (or intra/interagency transfer) will be rated by the independent peer reviewers according to an adjectival scale ranging in order of decreasing merit, as follows:

Excellent: Comprehensive, thorough and of exceptional merit, one or more major strengths, no major weaknesses, and any minor weaknesses easily correctable.

Very Good: Competent, one or more major strengths, strengths outweigh weaknesses, and major weaknesses correctable.

Good: Reasonable, may be strengths and/or weaknesses, weaknesses do not significantly detract from the proposal's viability, any major weaknesses are correctable.

Fair: One or more major weaknesses, weaknesses outweigh strengths, major weaknesses may possibly be corrected or minimized.

Poor: One or more major weaknesses which will be difficult to correct or may not be correctable.

Following the peer review, the OE Chief Scientist will compile the individual ratings and make recommendations for funding based on OE's mission, notice objectives and the project funding considerations.

The OE Director will have the final authority and responsibility for decisions regarding proposal selection. The Director shall have discretion in making final decisions and will consider: (1) Peer reviews; (2) the Chief Scientist's recommendations; (3) the avoidance of duplication with other projects funded by NOAA or other Federal Agencies or the proprietary of other funding sources; (4) the extent to which the proposal is in the best interest of OE's mission and the notice objectives (see Section II and III), (5) the extent to which it addresses funding considerations identified in this announcement (see Section VI), (6) the availability of program funding, and (7) the proposal's geographic location. High proposal peer review ratings may not result in funding for a given proposal. Investigators may be asked to modify objectives, work plans, or budgets prior to approval of the award. Subsequent administrative processing will be in accordance with current NOAA financial administrative procedures.

Other NOAA agencies and programs also have mission objectives which involve ocean research and technology development. Examples include the National Undersea Research Program, the National Sea Grant College Program, the Arctic Research Office, NOAA Fisheries and the National Ocean Service. OE anticipates and encourages collaborative proposals involving these agencies and programs. Investigators who wish to work with OE through any of these other entities should contact them directly. Prospective collaborative projects facilitated by these other programs will be subject to the OE's proposal review and decision-making process. For additional details about these other programs, see:http://oceanexplorer.noaa.gov.

C. Disposition of Unsuccessful Applications

Those proposals that are not ultimately selected for OE funding will be destroyed.

Applicants whose proposed projects may have an environmental impact should furnish sufficient information to assist proposal reviewers in assessing the potential environmental consequences of supporting the project.

B. Permits and Authorizations

Proposers are responsible for obtaining relevant permits and authorizations required under the laws of the jurisdiction in which the work is to be performed and under U.S. law.

For further information about permits, authorizations or viewing marine mammals and other protected species in the wild please visit the following NOAA Fisheries Web site: http://www.nmfs.noaa.gov/prot_res/overview/permits.html and http://www.nmfs.noaa.gov/prot_res/MMWatch/MMViewing.html.

X. Other Requirements

The Department of Commerce Pre-award Notification Requirements for Grants and Cooperative Agreements contained in the Federal Register Notice (66 FR 49917) published on October 1, 2001, are applicable to this solicitation.

Intergovernmental Review. Applications under this program are subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.”

Classification

Prior notice and an opportunity for public comments are not required by the Administrative Procedure Act (5 U.S.C. 553(a)(2)) or any other law for this notice concerning grants, benefits, and contracts.

Therefore, a regulatory flexibility analysis is not required for purposes of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

This action has been determined to be not significant for purposes of Executive Order 12866.

This notice contains collection-of-information requirements which are subject to the Paperwork Reduction Act. The use of Standard Forms 424, 424A, 424B, SF-LLL, and CD-346 have been approved by OMB under the respective control numbers 0348-0043, 0348-0044, 0348-0040, 0348-0046, and 0605-0001. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the Paperwork Reduction Act, unless than collection of information displays a currently valid OMB control number.

On October 2, 2002, notice was published in the Federal Register (67 FR 61850) that an amendment of Permit No. 774-1649, issued November 14, 2001 (66 FR 58445), had been requested by the above-named organization. The requested amendment has been granted under authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.), and the Regulations Governing the Taking and Importing of Marine Mammals (50 CFR part 216).

National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce

ACTION:

Notice, Request For Comments

SUMMARY:

Section 101 of the Electronic Signatures in Global and National Commerce Act, Pub. L. 106-229, codified at 15 U.S.C. 7001 et seq. (“ESIGN” or “the Act”), preserves the legal effect, validity, and enforceability of signatures and contracts relating to electronic transactions and electronic signatures used in the formation of electronic contracts. 15 U.S.C. 7001(a). Section 103 (a) and (b) of the Act, however, provides that the provisions of section 101 do not apply to contracts and records governed by statutes and regulations regarding probate and domestic law matters; state commercial law; consumer law covering utility services, residential property foreclosures and defaults, and insurance benefits; product recall notices; and hazardous materials papers. 15 U.S.C. 7003(a),(b). Section 103 of the Act also requires the Secretary of Commerce, through the Assistant Secretary for Communications and Information, to review the operation of these exceptions to evaluate whether they continue to be necessary for consumer protection, and to make recommendations to Congress based on this evaluation. 15 U.S.C. 7003(c)(1). This Notice is intended to solicit comments from interested parties to provide information for this evaluation, specifically on the ESIGN exception for notices that communicate information regarding the primary residence of an individual concerning default, acceleration, repossession, foreclosure, eviction, and the right to cure (hereinafter referred to as “residential default, foreclosure, and eviction notices”). See 15 U.S.C. 7003(b)(2)(B).

DATES:

Written comments and papers are requested to be submitted on or before [sixty (60) days after publication in the Federal Register].

ADDRESSES:

Written comments should be submitted to Josephine Scarlett, Senior Attorney, National Telecommunications and Information Administration, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Paper submissions should include a 3 and one-half inch computer diskette in HTML, ASCII, Word, or WordPerfect format (please specify version). Diskettes should be labeled with the name and organizational affiliation of the filer, and the name of the word processing program used to create the document. In the alternative, comments may be submitted electronically to the following electronic mail address: esignstudy_default@ntia.doc.gov. Comments submitted via electronic mail also should be submitted in one or more of the formats specified above.

FOR FURTHER INFORMATION CONTACT:

For questions about this request for comment, contact: Josephine Scarlett, Attorney, Office of the Chief Counsel, NTIA, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone (202) 482-1816 or electronic mail: jscarlett@ntia.doc.gov. Media inquiries should be directed to the Office of Public Affairs, National Telecommunications and Information Administration, at (202) 482-7002.

SUPPLEMENTARY INFORMATION:Background: Electronic Signatures in Global and National Commerce Act

Congress enacted the Electronic Signatures in Global and National Commerce Act, Pub. L. 106-229, 114 Stat. 464 (2000), to facilitate the use of electronic records and signatures in interstate and foreign commerce and to remove uncertainty about the validity of contracts entered into electronically. Section 101 requires, among other things, that electronic signatures, contracts, and records be given legal effect, validity, and enforceability. Sections 103(a) and (b) of the Act provides that the requirements of section 101 shall not apply to contracts and records governed by statutes and regulations regarding: probate and domestic law matters; state commercial law; consumer law covering utility services, residential property default, foreclosure, and eviction notices, and insurance benefits; product recall notices; and hazardous materials papers.

The statutory language providing for an exception to section 101 of ESIGN for notices of default, acceleration, repossession, foreclosure or eviction for a primary residence of an individual is found in section 103(b)(2)(B) of the Act:

(B) default, acceleration, repossession, foreclosure, or eviction, or the right to cure, under a credit agreement secured by, or a rental agreement for, a primary residence of an individual;

* * * *

The statutory language requiring the Assistant Secretary for Communications and Information to submit a report to Congress on the results of the evaluation of the section 103 exceptions to the ESIGN Act is found in section 103(c)(1) of the Act as set forth below.

(c) Review of Exceptions.—

(1) Evaluation required.— The Secretary of Commerce, acting through the Assistant Secretary for Communications and Information, shall review the operation of the exceptions in subsections (a) and (b) to evaluate, over a period of 3 years, whether such exceptions continue to be necessary for the protection of consumers. Within 3 years after the date of enactment of this Act, the Assistant Secretary shall submit a report to Congress on the results of such evaluation.

The ESIGN exception for residential default, foreclosure, and eviction notices prohibits creditors from sending electronic documents or information to consumers as notice of an impending foreclosure or eviction. Residential default, foreclosure, and eviction notices forwarded to consumers in electronic format are not required to be accorded legal validity and effect. Federal and state regulations governing foreclosures and evictions require that the creditors or landlords give consumer mortgagors and tenants written notice of default, foreclosure and eviction and that the notice be sent by certified or registered mail prior to action by the mortgagee or landlord to recover possession of the property. The regulations discussed herein are representative of the types of residential, default, foreclosure, and eviction notice requirements that are covered by the ESIGN exception and are not intended to provide an exhaustive list of the existing statutory requirements governing housing default, foreclosure, and eviction notice under federal and state law.

The Department of Agriculture (USDA), the Federal Reserve Board (Board), the Department of Housing and Urban Development (HUD), the Department of Treasury (DOT), and the Department of Veteran's Affairs (VA) have federal regulatory oversight over the housing and mortgage industry and, more specifically, over single family mortgage loans and programs that guarantee or secure funding for housing. These regulations and laws govern the type of notice and the manner of service that mortgage companies, banks, and other lenders are required to provide consumers prior to taking action to foreclose on residential properties or to evict a tenant. The states have concurrent jurisdiction in these areas and, thus, also have laws that govern residential foreclosure proceedings and tenant eviction processes. Section 104 of ESIGN allows federal and state regulatory agencies that are responsible for rulemaking under any other statute to interpret the consumer provisions of ESIGN through interpretive rules, orders, and regulations. See 15 U.S.C.7004(b)(1).

The Farm Credit Administration (FCA) of the USDA has created new rules and amended others to remove regulatory barriers to electronic commerce for Farm Credit System institutions and their customers. 67 FR 16627, 16628 (2002); see also 12 CFR 609.910. FCA recognized the ESIGN exception for residential default, foreclosure, and eviction notices and concluded that some of its system institutions cannot use electronic notification to deliver some of the notices required under part 614 of the rules. See id. at 16632. These rules provide that a lender “shall provide written notice to the borrower that the loan may be suitable for restructuring” not later than 45 days before the lender begins foreclosure proceedings. See 12 CFR 614.4516, 614.4519.

Similarly, the notice rules of the Office of Thrift Supervision require a creditor to provide written notice by registered or certified mail with return receipt requested no later than 30 days before the creditor acts to foreclose or accelerate payments on a federally related loan or mortgage. See 12 CFR 590.4(h). The foreclosure rules of the Department of Veteran's Affairs require the Department to provide borrowers with certain written information regarding the alternatives to foreclosure after receiving notice of default from the holder of a note on a loan guaranteed by the Department. See 38 U.S.C. 3732.

The Federal Reserve Board (Board) and Department of Treasury (DOT) have revised their regulations to authorize the electronic delivery of disclosures regarding certain home mortgages consistent with the ESIGN Act. In March, 2001, the Federal Reserve amended Regulation Z, 12 CFR part 226, in response to the ESIGN Act. See 66 FR 17329 (2001). Regulation Z implements the Truth in Lending Act, 15 U.S.C. section 1601 et seq., and requires that creditors make certain written disclosures to consumers about the terms and cost of credit before the transaction is consummated. The Board interpreted ESIGN as containing special rules for use of electronic disclosures that may be provided only if the consumer affirmatively consents after receiving certain information. Id. at 17330. The amendment to Regulation Z allows depository institutions, creditors, lessors and others to provide information to consumers regarding financial transactions if the disclosures are clear and conspicuous and the creditor complies with the consumer consent provisions of section 101(c) of ESIGN. Id. at 17334. Specifically regarding notices relating to the primary residence of an individual, the Board amended its rules to permit a creditor to provide a single rescission notice by electronic communication to each consumer with an ownership interest in a dwelling who has affirmatively assented to electronic delivery of the notice. Id. at 17332, 17333; see also, 12 U.S.C. 226.15(b)(1) and 226.23.

The Board also amended Regulation B, to allow for electronic disclosure of information required by the Equal Credit Opportunity Act (ECOA), 15 U.S.C. section 1691 et seq.See 66 FR 17779 (2001). ECOA prohibits discrimination by a creditor in any aspect of a credit transaction on the basis of sex, race, color, religion, national origin, marital status, age, receipt of public assistance, or good faith reliance on provisions of the Consumer Credit Protection Act. 12 CFR part 202. Regulation B provides guidance on the timing and delivery of written disclosures required by ECOA. The Board's amendment of Regulation B requires that creditors comply with the consumer consent provisions of section 101(c) of ESIGN when making disclosures electronically by e-mail or through website postings. See 12 CFR 202.17(b). Recently, the Department of the Treasury's Office of the Comptroller of the Currency (OCC) also amended its regulations, adding Subpart E, to facilitate the ability of national banks to conduct business using electronic technologies. See 67 FR 34992 (May 17, 2002); 12 CFR 7.5000 et seq.

The regulations of the Department of Housing and Urban Development (HUD) contain several requirements for residential default, foreclosure, and eviction notices to be provided to consumers of multifamily and single family housing.1 HUD insures mortgages secured by multifamily housing projects under the National Housing Act. Mortgagees are required to notify HUD of a default on a HUD-insured loan within 30 days of the date of the initial event of default. See HUD Handbook 4350.4, Table 2, Default Dates and Deadlines. The procedures for nonjudicial foreclosure of multifamily properties are set forth in the Multifamily Mortgage Foreclosure Act of 1981. See 12 U.S.C. 3701 et seq. For these mortgages, HUD's foreclosure commissioner must serve notice of default and foreclosure by certified or registered mail, postage prepaid and return receipt requested to the owners, mortgagors, dwelling units, and other lienholders not less than 21 days prior to the foreclosure sale. See 12 U.S.C. 3708; see also, 24 CFR 27.15(a). Notice must be served by mail, publication, or posting on the secured property. Id. Notices under this section are deemed duly given upon mailing, regardless of whether the addressee actually receives the letter. Id. HUD's regulations do allow, under limited circumstances, the electronic transmission of information for some mortgage defaults and foreclosures. The lenders or mortgagees that hold multifamily housing mortgages insured or coinsured by HUD are allowed to fulfill reporting requirements for mortgage defaults and delinquencies by electronically submitting the information to HUD. 24 CFR 200.120.

1 This notice is not an interpretive statement of the applicability of ESIGN's provisions to HUD's multifamily and single family housing regulations, but is designed to provide information regarding the type of residential default, foreclosure, and eviction notices that may be issued to consumers pursuant to HUD's rules and regulations. As noted above regarding the Fedral Reserve Board and the Farm Credit Administration's regulations, federal agencies may issue regulations and rulings to interpret the application of ESIGN's provisions on the specific statutes under their purview.

HUD's Office of the Assistant Secretary for Housing also oversees the requirements for and the manner of eviction notices given to tenants of subsidized housing and HUD-owned projects. The regulations provide that a landlord's determination to terminate a tenancy must be in writing and served on the tenant by first class mail or hand-delivery to an adult person at the residence no earlier than 30 days prior to the termination of the tenancy. See HUD Handbook 4350.3, Chapter 4, No. 4-21; 24 CFR 247.4.

HUD provides rental assistance for low income families under the public housing program, various Section 8 project-based assistance programs, and the section 8 tenant-based voucher program. Federal statutes and regulations set the tenancy requirements, however, the tenancies are governed by State law and procedure in all other respects. In all of the programs, tenants may be evicted for violations of the lease or other good cause. Under HUD's regulations, the landlord, owner, or public housing agency must give written notice of the grounds for eviction, and this notice may be combined with a notice to vacate issued under State law. See 24 CFR 880.607(c), 882.511(d), 966.4(l)(3), and 982.310(e).

The Single Family Mortgage Foreclosure Act of 1994, Pub. L. 103-227, requires several written notices and communications for single family mortgages during the pre-foreclosure, foreclosure sale, and mortgage collection processes. The regulations require that the mortgagees or lenders give the mortgagors in default on loans insured by HUD a written notice of delinquency. See 24 CFR 203.602. In addition, the regulations require that the foreclosure commissioner must serve notice of default and foreclosure sale by certified or registered mail, postage prepaid and return receipt requested on the current owner, occupants, mortgagors and lienholders not less than 21 days before the foreclosure sale. See 12 U.S.C. 3758; see also 24 CFR 27.103 and 27.105. For notices of default and acceleration, the lender or mortgagee must provide the borrower with written notice, by certified mail, that the loan is in default. 24 CFR 201.50. The lender, or mortgagee, is required to notify the mortgagor, or borrower, and each head of household who is actually occupying a unit of the property of its potential acquisition by HUD at least 60 days before the date on which the mortgagee reasonably expects to acquire title to the property. See 24 CFR 203.675.

We note that the states also have jurisdiction over the residential default, foreclosure, and processes as applied to the real estate located within state borders. In addition, the laws regarding default and eviction notices for most rental property are within the primary jurisdiction of the states. For example, Colorado provides that with respect to a default on any consumer loan secured by a deed of trust or mortgage, recorded after January 1, 2002, which encumbers a dwelling, the owner of the evidence of indebtedness shall, not more than 45 days after initial default and at least 20 days prior to the recording of a notice of election and demand, or the initiation of a suit for foreclosure, provide written notice of such default and the opportunity to cure, to all persons liable on the debt at the address of the residence of each such person. Colorado Revised Statutes § 38-38-102.5(c)(2). Similarly, Georgia's rules regarding foreclosure provide that notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 15 days before the date of the proposed foreclosure. Georgia Code Ann. § 44-14-162.2(a). The Georgia rules require that the notice shall be in writing and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor, and shall be deemed given on the official postmark day or day on which it is received for delivery by a commercial delivery firm. Id.

Just as the state requirements vary regarding the manner of notice provided to home owners and renters upon default, the state electronic transactions laws are also different. Approximately 39 states have enacted their own electronic transactions laws and ESIGN no longer applies to these states. Several of the states that have enacted electronic transactions laws have retained an exception for housing foreclosure and rental default notices. See e.g., Ala. Code § 8-1A-3(c)(2)(b)(2001); 5 Ill.Comp.Stat. 175/5-106 (2001). The ESIGN Act continues to apply to the remaining states and, therefore, housing foreclosure and rental default notices that are transmitted or executed in an electronic format or using an electronic signature are not legally valid in those states without UETA laws. The various state and federal laws that require written notice control the manner in which housing consumers receive notice of the delinquencies that threatened ownership and tenancy rights. The removal of the foreclosure and rental default notices exception to the ESIGN Act would give mortgagees and landlords an additional method of communicating this information to consumers via any electronic format available to them, including but not limited to facsimile, electronic mail, and digital or wireless devices. Information regarding the potential impact on state and federal laws, and on consumers of the removal of the foreclosure and rental default notices exception from the ESIGN Act would assist in this evaluation.

The ESIGN Section 103 Evaluation

The ESIGN Act directs the Assistant Secretary of Communications and Information to conduct an evaluation of the exceptions set out in section 103 of the Act to determine whether the exceptions continue to be necessary for the protection of consumers, and to submit a report to Congress on the results of the evaluation no later than June 30, 2003. The Assistant Secretary for Communications and Information is the chief administrator of NTIA. As the President's principal advisor on telecommunications policies pertaining to the Nation's economic and technological advancement, NTIA is the executive branch agency responsible for developing and articulating domestic and international telecommunications policy.

The ESIGN section 103 evaluation is intended to examine the current status of federal and state regulations that govern, and industry practices among companies that issue notices for residential default, foreclosure, and eviction in preparation for a report to Congress on whether this exception remains necessary to protect consumers. This evaluation is not a review or analysis of federal and state regulations and rules relating to residential default, foreclosure, or eviction notices for the purpose of recommending changes to those regulations but to advise Congress of the current state of law, practice, and procedure regarding this issue. Comments filed in response to this Notice should not be considered to have a connection with or impact on ongoing specific federal and state procedures or rulemaking proceedings concerning residential default, foreclosure, and eviction notices.

Invitation to Comment

NTIA requests that all interested parties submit written comments on any issue of fact, law, or policy that may assist in the evaluation required by section 103(c). We invite comments on ESIGN generally that assists in evaluating the narrower issues associated with residential default, foreclosure, and eviction notices as governed by the substantive law in these areas. The following questions are intended to provide guidance as to the specific subject areas to be examined as a part of the evaluation. Commenters are invited to discuss any relevant issue, regardless of whether it is identified below.

2. Provide state Uniform Electronic Transactions Act (UETA) provisions that require written notice to consumers by excluding housing foreclosure, repossession, and default notices from the provisions of the statute.

3. Describe state or federal regulations, other than UETA or ESIGN laws, that require residential default, foreclosure, and eviction notices to be provided in written form or to be excluded from the operation of ESIGN or the applicable state UETA.

5. Discuss the impact that the removal of the residential default, foreclosure, and eviction notices exception from ESIGN, to allow mortgage or rental companies to send notices by electronic methods mail, may have on consumers and on federal or state consumer protection policies.

6. If it is necessary to retain the residential default, foreclosure, or eviction notices exception to the ESIGN requirements, discuss the interest that this exception continues to serve or protect.

7. Discuss the methods that are available for consumer protection, if the residential default, foreclosure, and eviction notices exception to ESIGN is eliminated from the statute. Describe the methods that may be used to verify:

a. the notice was sent and/or received;

b. the security of the transmission; and

c. the recipient has the capability of receiving and reading the notice.

8. What effect, if any, would the elimination of the residential default, foreclosure, and eviction notices exception to ESIGN have on the mission of federal and state agencies and organizations that have regulatory authority over the process and service of notice of default, eviction and foreclosure?

Please provide copies of studies, reports, opinions, research or other empirical data referenced in the responses.

Pursuant to the provisions of subsection (d) of section 10 of Public Law 92-463, as amended by section 5 of Public Law 94-409, notice is hereby given that a closed meeting of the Defense Intelligence Agency Joint Military Intelligence College Board of Visitors has been scheduled as follows:

DATES:

Tuesday, January 7, 2003, 0800 to 1700; and Wednesday, January 8, 2003, 0800 to 1200.

The entire meeting is devoted to the discussion of classified information as defined in section 552b(c)(1), title 5 of the United States Code and therefore will be closed. The Board will discuss several current critical intelligence issues and advise the Director, Defense Intelligence Agency, as to the successful accomplishment of the mission assigned to the Joint Military Intelligence College.

The mission of the Advisory Group is to provide advice to the Under Secretary of Defense for Acquisition and Technology, to the Director Defense Research and Engineering (DDR&E), and through the DDR&E, to the Director Defense Advanced Research Projects Agency and the Military Departments in planning and managing an effective research and development program in the field of electron devices.

The Working Group B meeting will be limited to review of research and development programs which the military proposes to initiate with industry, universities or in their laboratories. The microelectronics area includes such programs on semiconductor materials, integrated circuits, charge coupled devices and memories. The review will include classified program details throughout.

In accordance with section 10(d) of Public Law 92-463, as amended, (5 U.S.C. App. sec 10(d)), it has been determined that this Advisory Group meeting concerns matters listed in 5 U.S.C. 552b(c)(1), and that accordingly, this meeting will be closed to the public.

The Defense Security Service (DSS) is transferring two systems of records to the Defense Human Resources Activity, Office of the Secretary of Defense (OSD). The systems of records are identified as V5-05, entitled ‘Security Research Center Espionage Database”, and V5-07, entitled ‘Security Research Center Export Violations Database’.

The systems of records will be known as DHRA 01, entitled ‘PERSEREC Espionage Database’, and DHRA 03, ‘PERSEREC Export Violations Database’, respectively. Before being transferred, administrative changes have been made to the notices.

DATES:

The changes will be effective on December 16, 2002, unless comments are received that would result in a contrary determination.

The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the Federal Register and are available from the address above.

The specific changes to the records system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.

Reason: The responsibility for this system of records is being transferred to the Defense Human Resources Activity (DHRA), Office of the Secretary of Defense. The system of records will be known as DHRA 01, entitled ‘PERSEREC Espionage Database’.

Reason: The responsibility for this system of records is being transferred to the Defense Human Resources Activity (DHRA), Office of the Secretary of Defense. The system of records will be known as DHRA 03, entitled ‘PERSEREC Export Violations Database’.

Individuals who have been arrested and convicted of espionage or related offense; those who have been prosecuted for espionage who committed suicide before trial or sentencing; and those arrested or under warrant for arrest for espionage who were not prosecuted because of death, suicide, or defection.

Categories of Records in the System:

Background information including individual's name, Social Security Number, date of birth, city/state/country of birth, education, marital status, gender, race, civilian or military member, rank (if military), security clearance (if applicable), years of federal service (if applicable), occupational category, job organization and location, age began espionage, first espionage contact, whether volunteered or recruited, receiving country, payment (if any), foreign relatives (if any), motivation-related, substance abuse (if applicable), date of arrest, arresting agency, date of sentence, sentence, and duration of espionage. Sources for records are newspaper and magazine articles, the biographies of spies, and similar open source works are included in paper files. Some of the missing variables have been filled in using information supplied by the agencies that investigated the case.

To analyze factors which may contribute to acts of espionage and assemble a body of knowledge useful to improved personnel security procedures. This information will permit examination of espionage trends and will help identify personal and situational variables of interest to policy-makers and others concerned with personnel security issues.

Aggregate statistics will be reported to DoD and other Government agencies in a technical report prepared from open-sources and containing some illustrative material mentioning some of the more famous cases by name.

Routine Uses of Records Maintained in the System, Including Categories of Users and the Purposes of Such Uses:

In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:

The DoD ‘Blanket Routine Uses’ set forth at the beginning of the OSD compilation of systems of records notices apply to this system.

Policies and Practices for Storing, Retrieving, Accessing, Retaining, and Disposing of Records in the System:

Storage:

Maintained on paper, computer and computer output products, and in microform.

Retrievability:

Records may be retrieved by name and Social Security Number.

Safeguards:

Records are stored under lock and key in secure containers, and in a computer system with intrusion safeguards.

Retention and Disposal:

Records are treated as permanent pending a determination by the NARA of authority for disposition of the records.

Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to Director, Defense Personnel Security Research and Education Center, 99 Pacific Street, Building 455E, Monterey, CA 93940-2481.

The inquiry should include full name and Social Security Number.

Record Access Procedures:

Individuals seeking access to records about themselves contained in this system of records should address a written request to Director, Defense Personnel Security Research and Education Center, 99 Pacific Street, Building 455E, Monterey, CA 93940-2481.

The inquiry should include full name and Social Security Number.

Contesting Record Procedures:

The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.

Record Source Categories:

Information is obtained from newspaper and magazine articles and similar open source documents. Some of the missing variables were filled in using information supplied by the agencies that investigated the case.

To analyze factors which may contribute to acts of illegal technology transfer in violation of U.S. export controls and to assemble a body of knowledge useful for improving security procedures. This information will permit examination of trends in illegal technology transfer since 1981 and help identify personal and situational variables of interest to policy makers and others concerned with counteracting export control violations. Aggregate statistics will be reported in a technical report. The report will include some vignettes of the more famous cases, using the individual's name, based on material found in open sources.

Routine Uses of Records Maintained in the System, Including Categories of Users and the Purposes of Such Uses:

In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:

The DoD ‘Blanket Routine Uses’ set forth at the beginning of the OSD compilation of systems of records notices apply to this system.

Policies and Practices for Storing, Retrieving, Accessing, Retaining, and Disposing of Records in the System:

Storage:

Maintained on paper, computer and computer output products, and in microform.

Retrievability:

Records are retrieved by individual's name.

Safeguards:

Records are stored under lock and key in secure containers, and in a computer system with intrusion safeguards.

Retention and Disposal:

Records are treated as permanent pending a determination by the NARA of authority for disposition of the records.

Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to Director, Defense Personnel Security Research and Education Center, 99 Pacific Street, Building 455E, Monterey, CA 93940-2481.

The inquiry should include the individual's full name.

Record Access Procedures:

Individuals seeking access to records about themselves contained in this system of records should address a written request to Director, Defense Personnel Security Research and Education Center, 99 Pacific Street, Building 455E, Monterey, CA 93940-2481.

The inquiry should include the individual's full name.

Contesting Record Procedures:

The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.

Record Source Categories:

Justice Department Export Control Cases listing, newspaper and magazine articles and other open source documents.

Summary: An institution of higher education (IHE) that is designated an eligible institution under the SIP, TCCU, ANNH and HSI Programs may receive a waiver of certain non-Federal share requirements under the Federal Work Study (FWS) and Federal Supplemental Educational Opportunity Grant (FSEOG) Programs. The SIP, TCCU, and ANNH Programs are authorized under Title III, Part A of the Higher Education Act of 1965, as amended (HEA). The HSI Program is authorized under Title V of the HEA. The FWS and FSEOG Programs are authorized under Title IV of the HEA.

On November 16, 2000 and December 26, 2001, we published Federal Register notices (65 FR 69291-69293 and 66 FR 66407-66409) that announced the processes for IHEs to apply for eligibility designation for FY 2001 and FY 2002 for the SIP, TCCU, ANNH and the HSI Programs. Some IHEs did not meet the established deadlines for submitting the applications, and therefore were not designated eligible to receive waivers of certain cost-sharing requirements under the FWS and FSEOG Programs. We are reopening the FY 2001 and FY 2002 eligibility processes to allow IHEs to apply for designation as eligible institutions under the SIP, TCCU, ANNH and HSI Programs for the limited purpose of receiving waivers of certain non-Federal share requirements of the FWS and FSEOG Programs for FY 2001 and FY 2002.

If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audio tape, or computer diskette) on request to the contact persons listed under For Applications and Further Information Contact.

Individuals with disabilities may obtain a copy of the application package in an alternative format by contacting those persons. However, the Department is not able to reproduce in an alternative format the standard forms included in the application package.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: www.ed.gov/legislation/FedRegister.

To use PDF, you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using the PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.

Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.access.gpo.gov/nara/index.html

Purpose of Program: To provide vocational rehabilitation services to American Indians with disabilities who reside on or near Federal or State reservations, consistent with their individual strengths, resources, priorities, concerns, abilities, capabilities, and informed choices, so that they may prepare for and engage in gainful employment, including self-employment, telecommuting, or business ownership.

Eligible Applicants: Applications may be submitted only by the governing bodies of Indian tribes (and consortia of those governing bodies) located on Federal or State reservations.

Applications Available: November 18, 2002.

Deadline for Transmittal of Applications: March 31, 2003.

Estimated Available Funds: $7,659,000.

The Administration has requested $26,804,000 for this program for FY 2003, of which $7,659,000 is expected to be used for this competition. The actual level of funding, if any, depends on final congressional action. However, we are inviting applications to allow enough time to complete the grant process, if Congress appropriates funds for this program.

Estimated Range of Awards: $300,000-$400,000.

Estimated Average Size of Awards: $350,000.

Estimated Number of Awards: 21.

Note:

The Department is not bound by any estimates in this notice.

Project Period: Up to 60 months.

Applicable regulations: (a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR parts 75, 77, 80, 81, and 82; and (b) The regulations for this program in 34 CFR part 371.

Priority: Under section 121(b)(4) of the Rehabilitation Act of 1973, as amended (29 U.S.C. 741), we give preference to applications that meet the following competitive priority (see 34 CFR 75.105(b)(2)(iv)). Under 34 CFR 75.105(c)(2)(i) we award 10 points to an application that meets this competitive priority. These points are in addition to any points the application earns under the selection criteria:

In making new awards under this program, we give priority consideration to applications for the continuation of tribal programs that have been funded under this program.

Selection Criteria: In evaluating an application for a new grant under this competition, we use selection criteria chosen from the general selection criteria in 34 CFR 75.210 of EDGAR. The selection criteria to be used for this competition will be provided in the application package for this competition.

You may also contact ED Pubs at its Web site: http://www.ed.gov/pubs/edpubs.html. Or you may contact ED Pubs at its e-mail address: edpubs@inet.ed.gov.

If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.250D.

Individuals with disabilities may obtain a copy of the application package in an alternative format by contacting the Grants and Contracts Services Team, U.S. Department of Education, 400 Maryland Avenue, SW., room 3317, Switzer Building, Washington, DC 20202-2550. Telephone: (202) 205-8207. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339. However, the Department is not able to reproduce in an alternative format the standard forms included in the application package.

For Further Information Contact: Pamela Martin or Suzanne Tillman, U.S. Department of Education, 400 Maryland Avenue, SW., room 3314, Switzer Building, Washington, DC 20202-2650. Telephone: for Pamela Martin (202) 205-8494; for Suzanne Tillman (202) 205-8303. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact persons listed in the preceding paragraph.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following sites: www.ed.gov/legislation/FedRegister.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.

Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.access.gpo.gov/nara/index.html.

The Office of Biological and Environmental Research (OBER) and the Office of Advanced Scientific Computing Research (ASCR) of the Office of Science (SC), U.S. Department of Energy (DOE), hereby announce their interest in receiving applications for research in the following areas that support the Genomes to Life research program (http://www.doegenomestolife.org/):

(1) Technologies and strategies to image individual proteins and multi-protein complexes in microbes and to image complex microbial communities;

(2) Technologies for the high-throughput synthesis of proteins and their biological characterization;

(7) Implications for society, the law, education, and technology transfer; and

(8) Other novel and innovative technologies and research strategies to address the core goals of the Genomes to Life research program.

DATES:

Statements of intent to apply, including information on collaborators, areas of proposed research and technology development, and a short (one page) summary of the proposed research should be submitted by Tuesday, January 7, 2003.

Formal research applications are due by 4:30 PM E.D.T., Tuesday, April 22, 2003.

ADDRESSES:

Statements of intent to apply should be sent to Ms. Joanne Corcoran by e-mail at: joanne.corcoran@science.doe.gov with copies to Dr. David Thomassen at: david.thomassen@science.doe.gov and Dr. Gary Johnson at: gary.johnson@science.doe.gov.

Formal applications in response to this solicitation are to be electronically submitted by an authorized institutional business official through DOE's Industry Interactive Procurement System (IIPS) at: http://e-center.doe.gov/. IIPS provides for the posting of solicitations and receipt of applications in a paperless environment via the Internet. In order to submit applications through IIPS your business official will need to register at the IIPS website. The Office of Science will include attachments as part of this notice that provide the appropriate forms in PDF fillable format that are to be submitted through IIPS. Color images should be submitted in IIPS as a separate file in PDF format and identified as such. These images should be kept to a minimum due to the limitations of reproducing them. They should be numbered and referred to in the body of the technical scientific application as Color image 1, Color image 2, etc. Questions regarding the operation of IIPS may be e-mailed to the IIPS Help Desk at: HelpDesk@e-center.doe.gov or you may call the help desk at: (800) 683-0751. Further information on the use of IIPS by the Office of Science is available at: http://www.science.doe.gov/production/grants/grants.html.

If you are unable to submit an application through IIPS please contact the Grants and Contracts Division, Office of Science at: (301) 903-5212 in order to gain assistance for submission through IIPS or to receive special approval and instructions on how to submit printed applications.

A complementary request for proposals from DOE national laboratories has been issued, Program Solicitation LAB 03-05.

SUPPLEMENTARY INFORMATION:

Biology has entered a new era—the era of systems biology—in which we will understand entire living organisms and their interactions with the environment. While scientists have long tried to understand the workings of individual genes or small groups of genes this new era in biology will focus research on entire networks of genes and even entire biological systems—small, single celled organisms at first and later more complex creatures ultimately including humans.

This dramatic advance is possible, in large part, because of the scientific and technical successes of the Human Genome Project. The information and technology now available to all scientists on the human genome and on a rapidly growing list of the genomes of other organisms from microbes to plants to worms to mice not only gives us new perspectives on the inner workings of biological systems but provides new opportunities to use this knowledge to solve problems in energy.

The Genomes to Life program is a systems biology research program that offers the possibility of biotechnology solutions that can give us abundant sources of clean energy yet control greenhouse gases like carbon dioxide, a key factor in global climate change, and that can help us clean up past contamination of the environment.

The overall goals of the Genomes to Life program include understanding:

2. Complex networks that control the assembly and operation of these machines.

3. The organization and biochemical capabilities of complex microbial communities.

These three goals will only be achieved if we develop:

4. A computational infrastructure for systems biology that enables the development of computational models for complex biological systems that can predict the behavior of these complex systems and their responses to the environment.

The Genomes to Life program supports a combination of large, well integrated, multidisciplinary research teams and smaller, focused research projects. This solicitation will support smaller, focused research projects to develop new technologies, research strategies, or research resources needed by the Genomes to Life program. Future solicitations will likely request applications for both large, well integrated, multidisciplinary research teams and smaller, focused research projects.

Information on the research projects currently funded by the Genomes to Life program and a description of project goals and overall program organization can be found at: http://www.doegenomestolife.org/.

Other useful Web sites include:

Microbial Genome Program Home Page—http://www.sc.doe.gov/ober/microbial.html.

Microbes of Interest to DOE. The initial focus of Genomes to Life is on microbes (including fungi) directly relevant to DOE mission needs in energy (cleaner energy, biomass conversion, carbon sequestration) or the environment (cleanup of metals and radionuclides at DOE sites). Research in Goals 1 and 2 takes advantage of and focuses on microbes whose complete DNA sequence is already known. Research in Goal 3 focuses on microbes or microbial communities of interest to, directly relevant to, or that will contribute substantially to an ability to address DOE mission needs. Selected, well-justified research using yeast is appropriate as a means of quickly generating data that addresses the needs of the Genomes to Life Program. However, the use of yeast as a long-term research focus will not be encouraged.

Data and Other Results. Any data and results generated through the investigations into Goals 1 through 4 that are appropriate to share with the broader community should be provided in timely, open, and machine-readable format where possible or appropriate. Microbial DNA sequence data will be publicly released according to the “Data Release Requirements: Microbial Genome Sequencing Projects” (http://www.sc.doe.gov/production/ober/EPR/data.html).

Software Development and Distribution. Software developed by research teams that is appropriate for distribution beyond the research team shall be made available to the biological and computational community. It is our intent that this software be accessible, useful, affordable, and interoperable with other software and with data. Applications should include plans for assuring availability, stating whether: the software will be available as binary or source code, a fee will be charged for the use of the software, some users (e.g., commercial) will be charged while others not, in what way derivative products will be treated, etc. Statements such as that by the International Society for Computational Biology on Bioinformatics Software Availability, http://www.iscb.org/pr.shtml, may be used for reference.

Research Focus (1) Technologies and Strategies to Image Individual Proteins and Multi Protein Complexes in Microbes and to Image Complex Microbial Communities

This solicitation will promote the development of imaging technology (probes, instrumentation and computational methodology) needed to accomplish the Genomes to Life program goals. Applications or development of imaging technology should be directed to or easily adapted to the study of microbes. Development of probes and instrumentation should be complementary to and facilitate completion of Genomes to Life program goals, including currently funded projects (see currently funded projects at: http://www.doegenomestolife.org/).

Additional information on the projected imaging needs of the Genomes to Life program can be found at: http://www.doegenomestolife.org/technology/imaging/GTLimaging2002.pdf.

—Visualization, tracking, assembly and disassembly of multi-protein molecular machines and their individual components. Multifunctional probes that measure structure, including post-translational modification and function in real time, are needed. —Rapid visualization and quantitation of intracellular processes with high spatial resolution. —Visualization and quantitation of microbial populations and communities with respect to their structure, functions, stability and response to environmental stress. Probes should be developed to determine the spatial and temporal concentration of nutrients, metabolites, signaling molecules, elements, extra cellular matrices and other biomolecules critical to maintaining microbial community structure and function. This should also include dynamic measuring of oxidative states and energy transfer kinetics.

Probes should be selective, non-perturbative, and resistant to degradation and should have unique spectroscopic signatures. Unambiguous experimental systems to validate probe performance should be presented.

• Development of new high-throughput tagging methods for chromophores, electron dense and other probes. Methods should be capable of being transported to the broader scientific community.

• Development of innovative optical and non-optical instrumentation that will visualize and quantitate dynamic aspects of molecular machines over a wide range of dimensions and time scales; enable simultaneous co-localization of different intra-cellular processes with high spatial resolution; and/or permit visualization of bacterial community composition and functions in the field as well as in the laboratory.

• Development of computational methods for rapid processing, storing, reconstructing, and three dimensional modeling of large image data sets, e.g., from cryoelectron microscopy. Computational methods are needed that can predict capabilities and limitations of various probes and instruments over a wide range of size and time scales. Novel computational tools are needed to integrate cellular image data sets derived from different instruments and technologies. Models of bacterial community structure, growth, functions and adaptive responses should be constructed based on experimental data and should facilitate development of alternative experimental approaches.

(2) Technologies for the High-Throughput Synthesis of Proteins and Their Biophysical Characterization

This solicitation seeks to promote the development of techniques and protocols for high-throughput, low-cost synthesis of full-length proteins directly from coding sequence and for their subsequent biophysical characterization. Availability of proteins will enable the production and confirmation of selective, non-perterbutive probes and molecular tags needed to address the broad goals of the Genomes to Life program.

An essential early requirement for turning genome information into biological understanding is having access to purified samples of at least the majority of the proteins encoded in the genomes of interest. Even within the microbial-focus of Genomes to Life, this requirement is daunting. It must encompass, within the next decade, hundreds of different microbes and therefore many tens of thousands of proteins. Both the production and characterization goals are significantly broader than those of structural genomics programs. In those programs the goals are limited to the structural characterization of a relatively small fraction of proteins, and often protein fragments, that represent structurally novel motifs.

It is recognized that no satisfactory general approach currently exists and that not all proteins will likely yield to the same techniques. It is expected that a variety of both cell-free and cell-based systems will be required, as well as multiple characterization methods. Production and characterization technologies should be scalable, economic, and sufficiently robust to meet the production goal of milligram quantities of approximately 10,000 proteins per year.

An essential early need is the development of improved techniques for predicting from sequence what production and purification approaches are most likely to succeed with each protein. Thus, informatics is an integral component. Algorithms based on data from successful and failed protein expressions are expected to substantially inform and improve future protein production efficiency.

Informatics coupled with biophysical characterizations are expected to provide functional insights that may also explain why such a large number of biologically important, full-length proteins either can not be expressed in soluble form, or have whose structures that cannot be determined once expressed. These proteins may include substantial disordered regions that adopt structures only after interaction with appropriate protein binding partners. Reliable predictive algorithms based on expression and characterization databases are therefore needed to predict disorder and binding partners.

Areas in which improvements are sought include:

• Optimization of cloning and clone validation techniques to support the protein production process.

• Optimization of cell-free and cellular expression methods.

• Optimization of protein purification protocols.

• Improved strategies for increasing the fraction of proteins that can be synthesized by automated methods. This may include sequence-based predictions of methods most likely to succeed and insights for optimization of expression protocols.

High-throughput, economical approaches for characterizing synthesized protein to assess product quality and to predict protein function are also solicited. A goal is to provide multiple benchmark biophysical characterizations for each protein under several conditions. These approaches are expected to include:

• Improved techniques for predicting, from protein sequence, ordered and dis-ordered domains and for predicting solubility properties of proteins and protein domains.

• Integrated data acquisition and management tools for tracking all steps of the production and characterization process and for supporting detailed QC/QA procedures.

• Improved high-throughput methods to predict, then rapidly test, and finally to confirm binding partners for proteins so that the nearly infinite number of potential interactions is reduced to experimentally testable subset.

This solicitation seeks advances in technology needed to mass-produce molecular tags for proteins and protein complexes, as tools to be used for determining function. As a top priority, technologies are sought for mass-producing specific protein recognition tags capable of functioning as:

These technologies must be scalable to permit tens of thousands of successful tags to be produced and characterized per year at affordable costs. It is recognized that none of the many approaches under development to address this problem have yet demonstrated compelling promise—even as generally effective laboratory-scale methods. Yet for the purposes of Genomes to Life and for modern biology altogether, very high-throughput, industrially robust methods to address this problem are required.

For the purposes of this solicitation, it is assumed that purified protein ‘targets’ will be provided to the researchers in micro-gram to milli-gram quantities so that tags can be optimized and characterized. Tags that interfere with function as well as those that do not interfere with protein function are both needed to help better define the biological roles of proteins. Areas in which technological improvements are sought include:

• Scalable methods for producing ‘epitope-directed’ affinity reagents of high specificity and affinity for proteins capable of functioning either as affinity extraction and capture reagents or as intra-cellular labeling reagents. High success ratios (fraction of protein epitopes yielding useful reagents) are essential.

• Improvements in protein-directed affinity tag design to improve tag utility, e.g., to facilitate subsequent purification and or/imaging, to facilitate release of the tagged protein, to image with and without disrupting activity, etc.

• Improved methods for developing tags directed specifically to protein complexes as distinct from their component proteins. Labeling complexes with and without disrupting interactions amongst protein components will provide important functional insights.

• Improved strategies for predicting, from sequence data, what potential protein epitopes are likely to be successful targets for tagging with and without interfering with function, and for predicting what tag development methods are likely to work for a particular protein/epitope.

• Imaging and labeling methods for multiplex mapping of proteins within cells. Simultaneously monitoring multiple labeled proteins will provide more comprehensive views of multi-protein complexes and their activities.

• Informatics tools both for managing tag production processes and for managing the data resulting from their use.

(4) High Resolution, Quantitative Microbial Biochemistry

As noted above, the initial focus of Genomes to Life is on microbes (including fungi) directly relevant to DOE mission needs in energy (cleaner energy, biomass conversion, carbon sequestration) or the environment (cleanup of metals and radionuclides at DOE sites). To this end, development of novel technologies are encouraged to support the characterization of the internal environment and organization of prokaryotic microbes relevant to DOE missions and the Genomes to Life program and to explore how the characteristics of a microbe's internal environment affect its metabolism and physiology.

Very little is known of the internal “milieu” of any cell. A microbial cell is not likely to be a “bag of dilute salt water” within which metabolites and gene products freely diffuse. There is internal organization due to structural cytoskeletal components, partitioning of gene products in different parts of the cell so that they can efficiently mediate their appropriate pathways, concentration gradients of proteins and small molecules across the volume of the cell, and physical effects caused by the cell membrane and intracellular constituents including the viscosity of a cell's cytoplasm.

A protein's localization within a cell, its relationships with other proteins, concentrations, and subcellular dynamics are critically important parameters in determining its function, for identifying functional networks of proteins in a morphological context, and for expanding our understanding of whole-cell function. Thus, studies on the topological, physical, and chemical properties of cellular cytoplasm, their effects on protein dynamics, on flux rates of metabolites, on protein-protein and protein-ligand interactions, and ultimately, on protein function are needed.

Research is needed that furnishes information on the dynamic behavior of these various molecules as the “molecular machines” perform their functions and on the distribution, localization, movement, and temporal variations of the molecules and complexes inside individual microbes as they carry out reactions of relevance to DOE missions and the Genomes to Life Program. Research is also needed to characterize topological, physical, and chemical characteristics underlying cellular responses to external stimuli, e.g., nutrients, toxins, or changes in environmental conditions. Similarly, computational algorithms designed to recognize regulatory networks or patterns of gene expression under different circumstances are needed that can provide insights into co-regulated genes.

New methods that accomplish any of several aims are solicited:

• Techniques to map the spatial distribution and concentrations of proteins and metabolites within prokaryotes.

• Techniques to assess fluxes and changes in concentrations of metabolites as a function of intracellular parameters and spatial location.

Microorganisms are the largest reservoir of genetic and biochemical diversity on earth. New methods for examining microbial communities have revealed that uncultured microbes make up more than 99% of many natural microbial communities. DNA isolated directly from environmental samples is a tremendous resource for examining the structure and function of microbial communities. The science of microbial ecology will be advanced by understanding the distribution, diversity, relative abundance, and interactions of the microorganisms in these communities.

A goal of the Genomes to Life Program (Goal 3) is to dramatically extend current scientific and technical understanding of the genetic diversity and metabolic capabilities of microbial communities in the environment, especially those related to remediation, biogeochemical cycles, climate changes, energy production, and biotechnology. A challenge to achieving this objective, however, is the difficulty in characterizing the complexity of microbial communities in nature. For example, it has been estimated that there may be thousands of different species in surface soils. Thus, new strategies and technologies are needed to help define and assess the repertoire of metabolic capabilities as embodied in the collective community's genomic sequence.

We need new technologies that enable us to:

• Determine whole-genome sequences of dominant uncultured microorganisms to estimate their genetic diversity and interrelationships. Novel technologies and strategies are needed to use the genome sequence to identify the genes, metabolic pathways, regulatory network and proteins needed for survival, growth and adaptation to the environment.

• Identify the extent, patterns and spatial distribution of genetic diversity in microbial communities of interest to the DOE mission areas. In particular, we need to understand how microbial diversity supports community structure and function, and the relationship of genetic diversity to key environmental parameters. For example, one strategy for understanding the extent and pattern of genetic diversity in microbial communities is to sequence bacterial artificial chromosome (BAC) clones from individual microbial communities by the shotgun approach. Comparing BAC clone sequences should lead to insights into community genetic diversity and metabolic capacity.

• Understand the ecological functions of the uncultured microorganisms. We need to identify the metabolic functions that these genomes encode and to understand how those functions contribute to the community's ecological role in the environment. Of particular interest is the unique role of novel uncultured microorganisms in ecosystems relevant to DOE's missions in bioremediation, carbon sequestration, global climate change, energy production, and biotechnology.

• Determine cellular and biochemical functions of genes discovered in uncultured community members. This includes determining the protein complexes unique to uncultured microorganisms in ecosystems of DOE relevance, and whether their unique characteristics can be used for protein engineering.

• Understand the genetic basis of microbial community functional stability and adaptation in environments important to DOE missions. We need to understand the relationship between genetic diversity and microbial community stability. For example, the genetic basis and factors controlling microbial community stability and adaptation is of great importance in managing microbial communities to bioremediate contaminated sites, sequester carbon from the atmosphere, and contribute to sustainable energy production.

Key technologies needed to achieve these goals include, but are not limited to:

• New approaches for recovering RNA and high-molecular-weight DNA from environmental samples.

• New approaches for isolating single cells of uncultured microorganisms.

• New parallel comparative approaches that allow unique microbial community DNA fragments to be identified and the community to be characterized in automated high-throughput ways.

• Novel technologies and approaches for defining the patterns of expression and functions of genes from microbial communities with large numbers of uncultured microorganisms, under different environmental conditions.

In addition, there are many computational challenges to characterizing the composition and functional capabilities of microbial communities. New algorithms for DNA sequence assembly and annotation will be required to analyze the multiorganism sequence data, and new modeling methods will be required to predict the behavior of microbial communities. Computational methods needed include the ability to deconvolute mixtures of partial genomes sampled in the environment and to identify individual organisms; to facilitate multiple-organism shotgun-sequence assembly; to improve comparative approaches to microbial sequence annotation and gene finding; to reconstruct pathways from sequenced or partially sequenced genomes; and to evaluate the combined metabolic capabilities of heterogeneous microbial populations. Importantly, computational methods are needed to correlate genomic, physiological, and biogeochemical site parameters, as well as their spatial and temporal distribution. Finally, methods to integrate regulatory-network, pathway, and expression data into integrated models of microbial community function are needed.

(6) Pathway Inference in Prokaryotes

Many of the future solutions to the problems of supplying energy without net greenhouse gas emissions, managing the atmosphere's carbon budget, and remediating environmental contamination from metals, radionuclides, and toxic chemicals, will be based on biotechnology. Most of the new biotechnologies will almost certainly arise from fundamental advances in our understanding the “microbial world”. This is primarily due to two facts. First, the metabolism of naturally occurring microorganisms plays a major role, often a dominant one, in many of the key chemical and energy fluxes of the planet. Second, virtually all of the biochemical transformations needed for safe energy production, carbon management, and environmental cleanup are part of the natural repertoire of one or more microorganisms. The challenge therefore is to explore and understand the immense chemical processing power that the microbial world possesses and uses. Achieving the needed understanding will require a nearly complete predictive mastery of the microbial cell from a ‘systems’ point of view—including their metabolic and signaling pathways, their regulatory networks, their material and energy flow constraints, etc. Data sets of considerable size and complexity must be obtained, managed, and mined. In addition, entirely new realms of modeling and simulation must be mastered.

The research requested in this section builds on advances in both computation and data base management as well as the extraordinary increase in the speed and capacity—and a corresponding reduction in the cost—of genome sequencing. Most fundamentally, it builds on the new and massive investment in the systems-level genomic-style study of microbial cells and microbial communities being undertaken as part of the Genomes to Life initiative.

The research requested in this section will facilitate the use of data obtained from the genomic and ‘systems-level’ experimental study of microbes (primarily prokaryotes) and microbial communities. It will in particular assist in using these data to predict the role played by each of the proteins encoded in the microbe's genome, the microbe's signaling and metabolic pathways, its regulatory mechanisms, and its biochemical capacities. This research will help enable the re-annotation of incorrectly annotated genomes, the prediction of functions for unknown genes, and discovery of known functions for which no genes have been identified. Biochemical capacities with direct relevance to DOE missions, such as energy production, carbon fixation, bioremediation, etc. are of particular interest.

Pathway Inference: Information on regulatory, metabolic, and signaling pathways in prokaryotes is growing rapidly. Just as the use of similarity searches, such as Basic Local Alignment Search Tool, across genomes of multiple organisms has provided extraordinarily useful information regarding the imputed function of the target gene sequences, the research requested in this section is intended to facilitate similar inferences through probes of pathways in other organisms, primarily microbes. Although, some new knowledge may be required experimentally, the emphasis is on providing a computational infrastructure for this homology searching. Investigators may propose the construction of specific databases, research on knowledge representation, and/or tools to measure similarity or provide inference. Any proposed databases should contain references to the source of the data, including measures of presumed accuracy, based partly on whether annotations were derived from experimental results or computational analogy. Research may be proposed on data structures and data access tools for the integrative storage of pathway, signaling, and regulation information needed to support ‘knowledge’ extraction and in particular the computation of inferences about pathway structure and function. This goal presents questions concerning the types of data that should be stored and how they are to be interrelated, queried, presented, etc. Research also may be proposed to develop tools and resources that will support computational methods for inferring the existence and function of signaling, regulatory, and metabolic pathways. The research in this element initially may be conducted on organisms chosen for their utility to the research rather than for their importance to DOE, but the proposed research should show that it will be transferable to prokaryotes and pathways of DOE interest.

(7) Implications for Society, the Law, Education, and Technology Transfer

Scientific research takes place in a context of ongoing societal concerns and expectations. Headlines about DNA, genes, and the new powers of science to analyze and manipulate fundamental elements of life vie for our attention daily. The dazzling diversity of applications of DNA science to fields ranging from medicine and agriculture to forensics and environmental restoration are having and will continue to have profound impacts on society and the lives of our citizenry. Many recent discoveries stem from data and tools generated by the Human Genome Project, whose goal is to describe in intricate detail the DNA from humans and other selected organisms by 2003. DNA is the information molecule that carries instructions for creating and maintaining all life. Resources and analytical technologies generated by the Human Genome Project and other genetic research can be applied to the DNA of all other organisms including those that are currently centerpieces of Genomes to Life research. Thus, it is important for the Genomes to Life program to address some of the ethical, legal, and social issues that may arise from the project.

The Genomes to Life program initially focuses on nonpathogenic microbes of environmental importance and those that have potential to address DOE missions such as bioremediation, energy production, global climate change processes and biotechnology. To this end, research is solicited into the Implications for Society, the Law, Education, and Technology Transfer from the research being conducted under the Genomes to Life program. Investigations are encouraged that focus on:

• Defining the range, nature and scope of issues raised by Genomes to Life research or the applications of that research;

• Exploring legal issues such as intellectual property protection and commercialization practices that may be relevant to advances in the Genomes to Life program;

• Exploring potential economic sequelae to the introduction of Genomes to Life scientific developments into the marketplace, e.g., impacts on the biotechnology sector and other industries;

• Educational challenges from the Genomes to Life mediated “paradigm shift” from reductionist science to a more “reconstructionist” science, e.g., the need to present science as more of a synthetic activity requiring insights from different scientific disciplines.

The scope of research on the Implications for Society, the Law, Economics and Education is a work in progress and emphases will evolve as opportunities are identified to explore the consequences of Genomes to Life science for society.

(8) Other Novel and Innovative Technologies and Research Strategies To Address the Core Goals of the Genomes to Life Research Program

Many different technologies, research strategies, and data resources will be required to successfully address the core goals of the Genomes to Life program. Applications will be accepted that propose to develop additional tools, research strategies, or resources that will help speed success in reaching the core goals of the Genomes to Life program. In most cases, these new technologies and research strategies should be scalable and automatable for genome-scale analyses. A strategy for or demonstration of scalability and automatability should be described. The relevance to Genomes to Life goals should be clearly described.

Program Funding

Up to $10 million is available in Fiscal Year 2003, contingent upon availability of appropriated funds. It is anticipated that individual research grants will be funded at a level of $250,000 to $1,000,000 per year.

Merit and Relevance Review

Applications will be subjected to scientific merit review (peer review) and will be evaluated against the following evaluation criteria listed in descending order of importance as codified at 10 CFR 605.10(d):

1. Scientific and/or Technical Merit of the Project;

2. Appropriateness of the Proposed Method or Approach;

3. Competency of Applicant's Personnel and Adequacy of Proposed Resources;

4. Reasonableness and Appropriateness of the Proposed Budget.

The evaluation will include program policy factors such as the relevance of the proposed research to the terms of the announcement and the Department's programmatic needs. External peer reviewers are selected with regard to both their scientific expertise and the absence of conflict-of-interest issues. Non-federal reviewers may be used, and submission of an application constitutes agreement that this is acceptable to the investigator(s) and the submitting institution.

Applications

Information about the development and submission of applications, eligibility, limitations, evaluation, selection process, and other policies and procedures may be found in the Application Guide for the Office of Science Financial Assistance Program and 10 CFR Part 605. Electronic access to the Guide and required forms is made available via the World Wide Web at: http://www.science.doe.gov/production/grants/grants.html. DOE is under no obligation to pay for any costs associated with the preparation or submission of applications if an award is not made.

The application must contain an abstract or project summary, letters of intent from collaborators, and short curriculum vitas consistent with NIH guidelines for all Principal and co-Principal Investigators.

Adherence to type size and line spacing requirements is necessary for several reasons. No applicants should have the advantage, or by using small type, of providing more text in their applications. Small type may also make it difficult for reviewers to read the application. Applications must have 1-inch margins at the top, bottom, and on each side. Type sizes must be 10 point or larger. Line spacing is at the discretion of the applicant but there must be no more than 6 lines per vertical inch of text. Pages should be standard 81/2″ x 11″ (or metric A4, i.e., 210 mm x 297 mm).

As noted above, color images should be submitted in IIPS as a separate file in PDF format and identified as such. These images should be kept to a minimum due to the limitations of reproducing them. They should be numbered and referred to in the body of the technical scientific application as Color image 1, Color image 2, etc.

Applicants are expected to use the following ordered format to prepare Applications in addition to following instructions in the Application Guide for the Office of Science Financial Assistance Program. Applications must be written in English, with all budgets in U.S. dollars.

• Face page (DOE F 4650.2 (10-91))

• Project abstract (no more than one page) including the name of the applicant, mailing address, phone, Fax, and e-mail

• Budgets for each year and a summary budget page for the entire project period (using DOE F 4620.1)

• Budget explanation

• Budgets and budget explanation for each collaborative subproject, if any

• Project description (includes goals, background, research plan, preliminary studies and progress, and research design and methodologies) not to exceed 20 pages.

The Office of Science, as part of its grant regulations, requires at 10 CFR 605.11(b) that a recipient receiving a grant to perform research involving recombinant DNA molecules and/or organisms and viruses containing recombinant DNA molecules shall comply with the National Institutes of Health “Guidelines for Research Involving Recombinant DNA Molecules”, which is available via the world wide Web at: http://www.niehs.nih.gov/odhsb/biosafe/nih/rdna-apr98.pdf,(59 FR 34496, July 5, 1994), or such later revision of those guidelines as may be published in the Federal Register.

DOE policy requires that potential applicants adhere to 10 CFR part 745 “Protection of Human Subjects” (if applicable), or such later revision of those guidelines as may be published in the Federal Register.

The Catalog of Federal Domestic Assistance Number for this program is 81.049, and the solicitation control number is ERFAP 10 CFR part 605.

This notice announces a meeting of the Biological and Environmental Research Advisory Committee. Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the Federal Register.

Dr. David Thomassen (301-903-9817; david.thomassen@science.doe.gov), or Ms. Shirley Derflinger (301-903-0044; shirley.derflinger@science.doe.gov), Designated Federal Officers, Biological and Environmental Research Advisory Committee, U.S. Department of Energy, Office of Science, Office of Biological and Environmental Research, SC-70/Germantown Building, 1000 Independence Avenue, SW., Washington, DC 20585-1290. The most current information concerning this meeting can be found on the Web site: http://www.science.doe.gov/ober/berac/announce.html.

SUPPLEMENTARY INFORMATION:

Purpose of the Meeting: To provide advice on a continuing basis to the Director, Office of Science of the Department of Energy, on the many complex scientific and technical issues that arise in the development and implementation of the Biological and Environmental Research Program.

Tentative Agenda Tuesday, December 3, and Wednesday, December 4, 2002 • Minisymposium on proposed facilities for the Genomes to Life program • Review of Free Air Carbon Dioxide Enrichment facilities • Science talk on nuclear medicine by Dr. Steve Larson, Memorial Sloan-Kettering Cancer Center, New York • Comments from Dr. Ray Orbach, Director, Office of Science • Presentation by Dr. Margaret Wright, Chair, Office of Advanced Scientific Computing Research Advisory Committee • Report by Dr. Ari Patrinos, Associate Director of Science for Biological and Environmental Research • Report of the Natural and Accelerated Bioremediation Research BERAC Subcommittee • New Business • Public Comment (10 minute rule)

Public Participation: The day and a half meeting is open to the public. If you would like to file a written statement with the Committee, you may do so either before or after the meeting. If you would like to make oral statements regarding any of the items on the agenda, you should contact David Thomassen or Shirley Derflinger at the address or telephone numbers listed above. You must make your request for an oral statement at least five business days before the meeting. Reasonable provision will be made to include the scheduled oral statements on the agenda. The Chairperson of the Committee will conduct the meeting to facilitate the orderly conduct of business. Public comment will follow the 10-minute rule.

Minutes: The minutes of this meeting will be available for public review and copying within 30 days at the Freedom of Information Public Reading Room, IE-190, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at (202) 564-7167. An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in the Federal Register dated April 12, 2002 (67 FR 17992).

Summary: EPA has environmental concerns regarding the direct and indirect consequences of this proposal which will require additional information to determine if the unavoidable losses will be appropriately mitigated.

Summary: EPA identified environmental concerns with the proposed project based on its contribution to significant cumulative visibility degradation in the Columbia River Gorge National Scenic Area and at Mount Hood. EPA recommended that the EIS be revised to include a more comprehensive air quality analysis.

ERP No. DS-COE-H32002-00 Rating LO, Missouri River Fish and Wildlife Mitigation Project to Restore Fish and Wildlife Habitat Losses Resulting from Construction, Operation and Maintenance of the Missouri River Bank Stabilization and Navigation Project (BSNP), Missouri River, Sioux City, Iowa to the Mouth near St. Louis, NB, KS and MO.

Summary The Draft Supplemental EIS for this project was adequate and considered all appropriate environmental impacts. Comments made on the DSEIS consisted of suggestions to improve the presentation or organization of data to ease the reader's understanding.

Summary: EPA expressed a lack of objection on the proposed action but requested clarification on the applicability of this project to the Emergency Planning and Community Right-to-Know Act, the Pollution Prevention Act and Executive Order 13148 for ammonia, chlorine and sulfuric acid.

Summary: EPA commended the Truckee River Water Quality Settlement Agreement signatories' work to permanently improve Truckee River water quality and reduce violations of water quality standards. EPA encouraged them to continue to work with EPA in achieving full compliance with water quality standards. The FEIS adequately addresses our concerns.

ERP No. F-DOE-G06012-00, Technical Area 18 (TA-18) Relocation of Capabilities and Materials at the Los Almos National Laboratory (LANL), Operational Activities involve Research in and the Design, Development, Construction, and Application of Experiments on Nuclear Criticality, NM, NV and ID.

Summary: EPA has no objections to the selection of the preferred alternative since EPA comments on the draft document have been adequately responded to.

ERP No. F-FHW-E40786-FL, I-4 Corridor Improvements, Upgrading the Safety and Mobility of the existing I-4 from west of FL-528 (Bee Line Expressway) Interchange in Orange County to east of FL-472 Interchange in Volusia County, Funding, U.S. Army COE Section 10 and 404 and NPDES Permits Issuance, Orange, Seminole, and Volusia Counties, FL.

Summary: EPA continues to have environmental concerns about the extent and mitigation of related socio-economic impacts. EPA suggests that a schedule for construction and operation of all project components be documented in the Record of Decision to ensure that alternative project considerations are consistent with comprehensive review procedures under NEPA.

ERP No. F-FRC-E03009-00, Patriot Project, Construction and Operation of Mainline Expansion and Patriot Extension in order to Transport 510.000 dekatherms per day (dth/day) of Natural Gas, TN, VA and NC.

Pursuant to the provisions of the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given that the next meeting of the Children's Health Protection Advisory Committee (CHPAC) will be held December 2-4, 2002 at the Hotel Washington, Washington, DC. The CHPAC was created to advise the Environmental Protection Agency on science, regulations, and other issues relating to children's environmental health.

DATES:

Monday, December 2, the Science/Regulatory Work Group and the Smart Growth Work Group will meet; plenary sessions will take place Tuesday, December 3, and Wednesday, December 4.

ADDRESSES:

Hotel Washington, 515 15th Street, NW, Washington, DC.

Agenda Items: The meetings of the CHPAC are open to the public. The Science/Regulatory Work Group will meet December 2, from 9 a.m. to 5 p.m. The Smart Growth Workgroup will meet on December 2, from 1 p.m. to 5 p.m. The plenary CHPAC will meet on Tuesday, December 3, from 9 a.m. to 5:30 p.m., with a public comment period at 5:15 p.m., and on Wednesday, December 4, from 8:30 a.m. to 12 p.m.

The plenary session will open with introductions and a review of the agenda and objectives for the meeting. Agenda items include highlights of the Office of Children's Health Protection (OCHP) activities and reports from the Smart Growth Workgroup and the Science and Regulatory Work Group. Other potential agenda items include an EPA Briefing on the Draft Cancer Guidelines and Interim Policy Statement and an informational panel on the National Children's Study.

SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, pesticide manufacturer, or antimicrobial pesticide manufacturer. Potentially affected entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. How Can I Get Copies of this Document and Other Related Information?

1. Docket. EPA has established an official public docket for this action under docket identification (ID) number OPP-2002-0284. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall# 2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/fedrgstr/.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select “search,” then key in the appropriate docket ID number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restriced by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

C. How and To Whom Do I Submit Comments?

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.

1. Electronically. If you submit an electronic comment as prescribed in this unit, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. Once in the system, select“ search,” and then key in docket ID number OPP-2002-0284. The system is an“ anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail. Comments may be sent by e-mail to opp-docket@epa.gov, Attention: Docket ID Number OPP-2002-0284. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Unit I.C.2. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under FOR FURTHER INFORMATION CONTACT.

E. What Should I Consider as I Prepare My Comments for EPA?

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide copies of any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.

5. Provide specific examples to illustrate your concerns.

6. Make sure to submit your comments by the deadline in this notice.

7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

II. What Action is the Agency Taking?

EPA has received a pesticide petition as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that this petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition.

The petitioner summary of the pesticide petition is printed below as required by FFDCA section 408(d)(3). The summary of the petition was prepared by the petitioner and represents the view of the petitioner. The petition summary announces the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical residues or an explanation of why no such method is needed.

Rhodia, Inc.,PP 2E6515

EPA has received a pesticide petition (2E6515) from Rhodia, Inc., CN 7500, Prospect Plains Rd., Cranbury, NJ 08512-7500, proposing, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 to establish an exemption from the requirement of a tolerance for 1,3-Benzene dicarboxylic acid, 5-sulfo-, 1,3-dimethyl ester, Sodium salt, polymer with 1,3-benzenedicarboxylic acid, 1,4-benzene dicarboxylic acid, dimethyl 1,4-benzene dicarboxylate and 1,2 ethanediol (CAS Reg. No. 212842-88-1) when used as an inert ingredient in pesticide formulations under 40 CFR 180.960 (polymers). EPA has determined that the petition contains data or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the petition. Additional data may be needed before EPA rules on the petition.

Where it can be determined that an inert ingredient meets the definition of a low risk polymer (40 CFR 723.250), then the production of data is generally not required by EPA to establish a tolerance or the exemption from a tolerance. Rhodia, Inc. asserts that the data and information provided below is sufficient to establish the activity and toxicity associated with 1,3-Benzene dicarboxylic acid, 5-sulfo-, 1,3-dimethyl ester, Sodium salt, with polymer with 1,3-benzenedicarboxylic acid, 1,4-benzene dicarboxylic acid, dimethyl 1,4-benzene dicarboxylate and 1,2 ethanediol as an inert ingredient when applied to growing crops or raw agricultural commodities.

Further, in the case of chemical substances described as polymers, EPA has established criteria, which when they are met or exceeded, are considered low risk. These criteria are described in 40 CFR 723.250, and identify the polymers that are relatively unreactive, stable, and typically are not absorbed when compared to other chemical substances including some polymers. Rhodia, Inc. has previously submitted information regarding 1,3-Benzene dicarboxylic acid, 5-sulfo-, 1,3-dimethyl ester, Sodium salt, with polymer 1,3-benzene dicarboxylic acid, 1,4-benzene dicarboxylic acid, dimethyl 1,4-benzene dicarboxylate and 1,2 ethanediol to the Environmental Protection Agency in a Pre Manufacturing Notice for consideration under the polymer exemption rule (PMN Number P96-818).

The criteria described in 40 CFR 723.250, and addressed below, will generally exclude polymer chemicals that are not well known and understood, and present great risk of adverse effects. Therefore, the polymers that meet or exceed these criteria can be considered of minimal or no risk.

c.-1,3-Benzene dicarboxylic acid, 5-sulfo-, 1,3-dimethyl ester, Sodium salt, polymer with 1,3-benzene dicarboxylic acid, 1,4-benzene dicarboxylic acid, dimethyl 1,4-benzene dicarboxylate and 1,2 ethanediol does not contain as an integral part of its composition, except as impurities, any elements other than those listed in 40 CFR 723.250(d)(2)(ii).

1. Dietary exposure. The physical-chemical characteristics of 1,3-Benzene dicarboxylic acid, 5-sulfo-, 1,3-dimethyl ester, Sodium salt, polymer with 1,3-benzene dicarboxylic acid, 1,4-benzene dicarboxylic acid, dimethyl 1,4-benzene dicarboxylate and 1,2 ethanediol lead to the conclusion that there is a reasonable certainty of no harm from exposure to the polymer from food or drinking water nor from an aggregate exposure.

2. Non-dietary exposure. The physical-chemical characteristics of 1,3-Benzene dicarboxylic acid, 5-sulfo-, 1,3-dimethyl ester, Sodium salt, polymer with 1,3-benzene dicarboxylic acid, 1,4-benzene dicarboxylic acid, dimethyl 1,4-benzene dicarboxylate and 1,2 ethanediol lead to the conclusion that there is a reasonable certainty of no harm from exposure to the polymer from non-dietary means.

D. Cumulative Effects

At this time there is no information to indicate that any toxic effects produced by 1,3-Benzene dicarboxylic acid, 5-sulfo-, 1,3-dimethyl ester, Sodium salt, polymer with 1,3-benzene dicarboxylic acid, 1,4-benzene dicarboxylic acid, dimethyl 1,4-benzene dicarboxylate and 1,2 ethanediol would be cumulative with those of any other chemical. Given the compound's categorization as a low risk polymer, and its proposed use in pesticide formulations, there is no expectation of increased risk due to cumulative exposure.

E. Safety Determination

1. U.S. population. Based on the polymer's physical-chemical properties, and that it meets or exceeds the polymer exemption criteria at 40 CFR 723.250 for low-risk polymers, adverse effects are not expected.-

2. Infants and children. Based on the polymer's physical-chemical properties, and that it meets or exceeds the polymer exemption criteria at 40 CFR 723.250 for low-risk polymers, adverse effects are not expected.

F. International Tolerances

There are no CODEX maximum residue limits established for 1,3-Benzene dicarboxylic acid, 5-sulfo-, 1,3-dimethyl ester, Sodium salt, polymer with 1,3-benzene dicarboxylic acid, 1,4-benzene dicarboxylic acid, dimethyl 1,4-benzene dicarboxylate and 1,2 ethanediol in or on crops or commodities at this time.

Notice of availability of annual reports as required by the EPAct of 1992.

SUMMARY:

The Environmental Protection Agency announces the availability of reports summarizing compliance with alternative fueled vehicle acquisition requiremetns of the Energy Policy Act of 1992 (EPAct). These reports are available at the following Web site: http://www.epa.gov/greeningepa/greenfleet/index.htm. or by request to the Environmental Protection Agency (EPA) Transportation Management Office. These reports have been prepared and are being made publicly available as mandated by EPAct, which was designed to increase United States energy security in cost-effective and environmentally beneficial ways, in part through increased use of alternative fuels by vehicles owned and operated by the Federal governmnet.

EPA is proposing to execute a Prospective Purchaser Agreement (“PPA”) under authority of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. 9601 et seq., as amended, and under the inherent authority of the Attorney General of the United States to compromise and settle claims of the United States, for the transfer of title to property at the Pruitt & Grace Superfund site to Patrick Electric Company, Inc., and Mr. Robert Patrick II. The company and Mr. Patrick are both settling respondents under the PPA. In return for a covenant not to sue and contribution protection from EPA, the settling respondents will pay $2,000 to EPA, and will redevelop and operate the site. Settling respondents further agree to: Provide EPA and the Ohio Environmental Protection Agency (“OEPA”) with continued access to the site if necessary; exercise due care with respect to any existing contamination; cooperate with EPA and OEPA; and comply with all environmental laws and regulations. Patrick Electric further covenants not to sue the United States.

The proposed PPA has been executed by the settling respondents, and has been submitted to the Attorney General for approval. EPA today is proposing to execute the PPA because it achieves a benefit for the community where the site is located by encouraging the reuse or redevelopment of property at which fear of Superfund liability may have been a barrier, thereby fulfilling EPA's Brownfields policies and goals. The site is not on the National Priorities List. No further response activities by EPA are anticipated at the site at this time.

The site is located at 1228 West 15th Street, Lorain, Lorain County, Ohio. It is approximately one acre in size and is bounded to the north by railroad tracks, to the south by West 15th Street and private residences, and to the east by Oberlin Avenue and small businesses. The facility was operated by Pruitt & Grace Prime Line, Inc. and Pruitt & Grace Development Corporation (collectively, “Pruitt & Grace”). Pruitt & Grace ceased operating in the mid-1980s. As a result, Pruitt & Grace left behind approximately 325 55-gallon drums and a number of 5-gallon cans. Access to the site was unrestricted. The drums were left outdoors and were rusty, bulging, leaking, open, or in various stages of deterioration, which prompted neighborhood complaints about odor and other problems. The drums contained abandoned or waste paints, lacquers, solvents (including tetrachloroethylene), and other substances. Several drums were labeled inflammable. EPA sampled open containers and found organic vapors with concentrations as high as 200 parts per million (“ppm”). Based on these results, EPA performed field hazard characterization tests for ignitability on several drums and confirmed that ignitable and/or inflammable materials existed at the site.

EPA determined that, among other things, the site posed a threat of fire or explosion and that an imminent and substantial endangerment to human health or the environment existed. EPA took an emergency removal action as authorized by section 104 of CERCLA, 42 U.S.C. 9604, to mitigate the threat of fire or explosion. Actions taken by EPA included: Installation of a fence along the northern boundary of the site; inventorying and sampling of drum contents; pumping and off-site disposal of liquid fractions from all drums; consolidation of partially full drums; over-packing of full drums; crushing and off-site disposal of empty drums; and off-site disposal of all hazardous wastes, including one 55-gallon drum of waste oil. EPA completed the clean-up on January 17, 1992. Total costs incurred by EPA amounted to at least $144,358.73.

Under the proposed PPA, the settling respondents will redevelop the site and move their electrical services contracting business there, thus returning an abandoned Superfund site to productive use and preserving or creating jobs. The settling respondents will also pay $2,000 to EPA; provide future access to the site if necessary to EPA and the Ohio Environmental Protection Agency (“OEPA”); exercise due care with respect to any existing contamination; cooperate with EPA and OEPA; and comply with all environmental laws and regulations. They further covenant not to sue the United States. In return, EPA covenants not to sue and provides contribution protection to the settling respondents, subject to certain reservations of rights. A 30-day period, beginning on the date of publication of this notice, is open for comments on the proposed Prospective Purchaser Agreement.

This document revises the starting date for Auction No. 47, revises the auction inventory to include three additional licenses, and seeks comment on procedural issues related to the auction of these additional licenses. This document revises the auction start date to provide additional time for bidder preparation and planning.

DATES:

Comments are due on or before November 1, 2002, and reply comments are due on or before November 8, 2002.

ADDRESSES:

All comments and reply comments must be filed electronically to the following address: auction47@fcc.gov.

This is a summary of the Auction No. 47 Revised License Inventory and Auction Start Date Public Notice released October 25, 2002. The complete text of the Auction No. 47 Revised License Inventory and Auction Start Date Public Notice, including the attachment, is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The Auction No. 47 Revised License Inventory and Auction Start Date Public Notice may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail to qualexint@aol.com.

I. Background

1. In the Auction No. 47 Comment Public Notice, the Wireless Telecommunications Bureau (“Bureau”) announced the auction of four licenses to provide cellular service in four unserved areas (“Auction No. 47”) scheduled to commence on December 4, 2002.1 By the Auction No. 47 Revised License Inventory and Auction Start Date Public Notice the Bureau revises the starting date for Auction No. 47 to February 12, 2003 and revises the auction inventory to include three additional licenses in the Cellular Radiotelephone Service. The additional spectrum to be auctioned is the subject of pending mutually exclusive long-form applications for three additional unserved area licenses. One additional license will be auctioned for each of the three additional mutually exclusive applicant groups (“MX Groups”). The three additional licenses that will be offered in Auction No. 47 and three additional MX Groups are identified in Attachment A of the Auction No. 47 Revised License Inventory and Auction Start Date Public Notice. The Auction No. 47 Revised License Inventory and Auction Start Date Public Notice seeks comment on procedural issues related to the auction of these licenses. The auction start date has been revised to provide additional time for bidder preparation and planning.

1 In addition, procedures were proposed in the Auction No. 47 Comment Public Notice with actual notice and an opportunity to comment provided to all of the parties in this closed auction.

II. Auction Structure A. Single-Round Sealed-Bid Auction Design

2. In the Auction No. 47 Comment Public Notice, the Bureau proposed to award licenses included in Auction No. 47 in a single-round sealed-bid auction. This methodology offers every license for bid at the same time with bidders placing one bid per license. For the same reasons the Bureau proposed to use the single-round sealed-bid format in the Auction No. 47 Comment Public Notice, it proposes to use this format for the additional licenses. The Bureau seeks comment on this proposal. It will consider comments received in response to the Auction No. 47 Comment Public Notice as well as comments filed in response to the Auction No. 47 Revised License Inventory and Auction Start Date Public Notice in considering whether to use a single-round sealed-bid auction design as proposed.

III. Reserve Price or Minimum Opening Bid

3. For the additional licenses offered in Auction No. 47, the Bureau proposes to utilize the same minimum opening bid of $500 per license as proposed in the Auction No. 47 Comment Public Notice. A complete list of all licenses to be offered in Auction No. 47 and their proposed minimum opening bids is provided in Attachment A of the Auction No. 47 Revised License Inventory and Auction Start Date Public Notice. Comment is sought on this proposal. Alternatively, comment is sought on whether, consistent with the Balanced Budget Act of 1997, the public interest would be served by having no minimum opening bid or reserve price.

IV. Upfront Payments and Initial Maximum Eligibility for Each Bidder

4. For the additional licenses in Auction No. 47, the Bureau proposes to use the same upfront payment of $500 per license as previously proposed for the cellular unserved service area licenses in the Auction No. 47 Comment Public Notice. A complete list of all licenses to be offered in Auction No. 47, including their related geographic service areas and upfront payments, is included in Attachment A of the Auction No. 47 Revised License Inventory and Auction Start Date Public Notice. The Bureau seeks comment on this proposal.

5. The Bureau further proposes that the amount of the upfront payment submitted by a bidder will determine the number of bidding units on which a bidder may place bids. This limit is a bidder's “maximum eligibility.” This number does not reflect the maximum bid that can be placed on each license. Rather, a bidder may place bids on any number of licenses as long as the sum of the bidding units associated with those licenses does not exceed its maximum eligibility. Thus, in calculating the upfront payment amount, an applicant must determine the maximum number of bidding units it may wish to bid on, and submit an upfront payment covering that number of bidding units. The Bureau seeks comment on this proposal.

V. Other Auction Procedural Issues

6. In the Auction No. 47 Comment Public Notice, the Bureau also set forth and sought comment on the following proposals relating to auction structure and bidding procedures: (i) Information relating to auction delay, suspension or cancellation; (ii) round structure; (iii) minimum acceptable bids; (iv) winning bids and tied bids; and (v) information regarding bid withdrawal and bid removal. For the additional licenses in Auction No. 47, the Bureau proposes to utilize the same auction structure and bidding procedures proposed in the Auction No. 47 Comment Public Notice. The Bureau seeks comment on these proposals as they relate to the three additional licenses included in Attachment A of the Auction No. 47 Revised License Inventory and Auction Start Date Public Notice.

VI. Conclusion

7. Comments are due on or before November 1, 2002, and reply comments are due on or before November 8, 2002. The Bureau requires that all comments and reply comments be filed electronically. Comments and reply comments must be sent by electronic mail to the following address: auction47@fcc.gov. The electronic mail containing the comments or reply comments must include a subject or caption referring to Auction No. 47 Comments. The Bureau requests that parties format any attachments to electronic mail as Adobe® Acrobat® (pdf) or Microsoft® Word documents. Copies of comments and reply comments will be available for public inspection during regular business hours in the FCC Public Reference Room, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. In addition, the Bureau requests that commenters fax a courtesy copy of their comments and reply comments to the attention of Kathryn Garland at (717) 338-2850.

8. This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. Other rules pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in § 1.1206(b) of the Commission's rules.

The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).

The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than November 29, 2002.

The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR Part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below.

The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.

Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 9, 2002.

2. Allied Irish Banks, P.L.C., Dublin, Ireland; to acquire up to 25 percent of the voting shares of M&T Bank Corporation, Buffalo, New York, and thereby will control indirectly shares of Manufacturers and Traders Trust Company, Buffalo, New York.

In connection with this application, Applicant also has applied to acquire Keystone Financial Life Insurance Company, Phoenix, Arizona, and thereby indirectly acquire Martindale Andres & Company, LLC, West Conshohocken, Pennsylvania, and engage in certain nonbanking activities including insurance, and investment services, pursuant to §§ 225.28(b)(6) and (b)(11) of Regulation Y.

Applicant currently owns Allfirst Financial Inc., with has applied to merge with M&T Bank Corporation. After the merger, Applicant also indirectly would own an interest in all of Allfirst's current subsidiaries including, Allfirst Financial Center, N.A., Misllsboro, Delawre.

Robert deV. Frierson,Deputy Secretary of the Board.[FR Doc. 02-28945 Filed 11-14-02; 8:45 am]BILLING CODE 6210-01-SDEPARTMENT OF HEALTH AND HUMAN SERVICESOffice of the SecretaryFederal Financial Participation in State Assistance Expenditures; Federal Matching Shares for Medicaid, the State Children's Health Insurance Program, and Aid to Needy Aged, Blind, or Disabled Persons for October 1, 2003 Through September 30, 2004AGENCY:

Office of the Secretary, DHHS.

ACTION:

Notice.

SUMMARY:

The Federal Medical Assistance Percentages and Enhanced Federal Medical Assistance Percentages for Fiscal Year 2004 have been calculated pursuant to the Social Security Act (the Act). These percentages will be effective from October 1, 2003 through September 30, 2004. This notice announces the calculated “Federal Medical Assistance Percentages” and “Enhanced Federal Medical Assistance Percentages” that we will use in determining the amount of Federal matching for State medical assistance (Medicaid) and State Children's Health Insurance Program (SCHIP) expenditures, and Temporary Assistance for Needy Families (TANF) Contingency Funds, the federal share of Child Support Enforcement collections, Child Care Mandatory and Matching Funds for the Child Care and Development Fund, Foster Care Title IV-E Maintenance payments, and Adoption Assistance payments. The table give figures for each of the 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. Programs under title XIX of the Act exist in each jurisdiction; programs under titles I, X, and XIV operate only in Guam and the Virgin Islands; while a program under title XVI (Aid to the Aged, Blind, or Disabled) operates only in Puerto Rico. Programs under title XXI began functioning in fiscal year 1998. The percentages in this notice apply to State expenditures for most medical services and medical insurance services, and assistance payments for certain social services. The statute provides separately for Federal matching of administrative costs.

Sections 1905(b) and 1101(a)(8)(B) of the Act require the Secretary of Health and Human Services to publish the Federal Medical Assistance Percentages each year. The Secretary is to figure the percentages, by formulas in sections 1905(b) and 1101(a)(8)(B), from a Department of Commerce's statistics of average income per person in each State and in the Nation as a whole. The percentages are within the upper and lower limits given in section 1905(b) of the Act. The percentages to be applied to the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands are specified in statute, and thus are not based on the statutory formula that determines the percentage for the 50 states.

The “Federal Medical Assistance Percentages” are for Medicaid. Section 1905(b) of the Act specifies the formula for calculating Federal Medical Assistance Percentages as follows:

“Federal medical assistance percentage” for any State shall be 100 per centum less the State percentage; and the State percentage shall be that percentage which bears the same ratio to 45 per centum as the square of the per capita income of such State bears to the square of the per capita income of the continental United States (including Alaska) and Hawaii; except that (1) the Federal medical assistance percentage shall in no case be less than 50 per centum or more than 83 per centum, (2) the Federal medical assistance for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa shall be 50 per centum.

A provision in the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 modified the formula to calculate the percentages to be applied to Alaska for fiscal years 2001 through 2005. For Alaska only, the formula requires dividing the state's three-year average per capita income by 10.5 instead of 1.0. Section 2105(b) of the Act specifies the formula for calculating the Enhanced Federal Medical Assistance Percentages as follows:

The “enhanced FMAP”, for a State for a fiscal year, is equal to the Federal medical assistance percentage (as defined in the first sentence of section 1905(b)) for the State increased by a number of percentage points equal to 30 percent of the number of percentage points by which (1) such Federal medical assistance percentage for the State, is less than (2) 100 percent; but in no case shall the enhanced FMAP for a State exceed 85 percent.

The “Enhanced Federal Medical Assistance Percentages” are for use in the State Children's Health Insurance Program under Title XXI, and in the Medicaid program for certain children for expenditures for medical assistance described in sections 1095(u)(2) and 1905(u)(3) of the Act. There is no specific requirement to publish the Enhanced Federal Medical Assistance Percentages. We include them in this notice for the convenience of the States.

EFFECTIVE DATES:

The percentages listed will be effective for each of the 4 quarter-year periods in the period beginning October 1, 2003 and ending September 30, 2004.

The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 498-1210. Send written comments to CDC, Desk Officer, Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503. Written comments should be received within 30 days of this notice.

Proposed Project: Impact of Community Coordinated Response for the Prevention of Intimate Partner Violence: A Random Digital Dial Survey—NEW—National Center for Injury Prevention and Control (NCIPC), Centers for Disease Control and Prevention (CDC).

A random digit dial survey will be conducted with 12,000 male and female adults in the communities of ten experimental sites and ten control sites (600 per site). The survey will determine whether adding resources to a community to develop a coordinated community response to intimate partner violence (IPV), leads to increased knowledge about IPV such as where to go for help and how to assist a victim, child witness and/or perpetrator of IPV. A base survey instrument will be administered along with an addendum from the sites that wish to address other research needs in their experiment and control communities.

While previous surveys such as the National Violence Against Women Survey (1996) have collected information on intimate partner violence, no previous survey has explored the effects of a coordinated community response, enhanced services, and public awareness campaigns between experimental and control sites.

Interviews will be conducted with persons at residential phone numbers selected using random digit dialing. No more than one respondent per household will be selected, and each sample member will complete just one interview. Non-residential numbers are ineligible for the sample and will not be interviewed. Female interviewers will be used and bi-lingual Spanish interviewers will conduct interviews in Spanish to reduce language barriers to participation. The estimated annualized burden is 3813 hours.

Agenda: The subcommittee will discuss FDA's action plan for addressing the issue of acrylamide in food. An agenda for the meeting will be available on the Internet at http://www.cfsan.fda.gov/list.html and at the meeting location on the day of the meeting.

Procedure: Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. Written submissions may be made to the contact person by November 20, 2002. Oral presentations from the public will be scheduled between approximately 4:30 p.m. and 6 p.m. on December 4, 2002, on issues related to acrylamide in food. Time allotted for each presentation may be limited. Those desiring to make formal oral presentations should notify the contact person before November 20, 2002, and submit a brief statement of the general nature of the evidence or arguments they wish to present, the names and addresses of proposed participants, and an indication of the approximate time requested to make their presentation.

Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.

FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Henry Kim at least 7 days in advance of the meeting.

Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).

Agenda: The committee will review and discuss safety and efficacy and proposed indications for the product, FluMist, a cold-adapted, live attenuated, trivalent influenza vaccine for the prevention of influenza sponsored by MedImmune Vaccines, Inc.

Procedure: Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. Written submissions may be made to the contact person by December 1, 2002. Oral presentations from the public will be scheduled between approximately 1 p.m. and 2 p.m. Time allotted for each presentation may be limited. Those desiring to make formal oral presentations should notify the contact person before December 1, 2002, and submit a brief statement of the general nature of the evidence or arguments they wish to present, the names and addresses of proposed participants, and an indication of the approximate time requested to make their presentation.

Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.

FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Jody G. Sachs or Denise H. Royster at least 7 days in advance of the meeting.

Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).

In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104-13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to OMB under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, call the HRSA Reports Clearance Officer on (301) 443-1129.

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

In response to Executive Order 12862, the Health Resources and Services Administration (HRSA) is proposing to conduct voluntary customer surveys of its “partners” to assess strengths and weaknesses in program services. A generic approval is being requested from OMB to conduct the partner surveys. HRSA partners are typically State or local governments, health care facilities, health care consortia, health care providers, and researchers.

Partner surveys to be conducted by HRSA might include, for example, mail or telephone surveys of grantees to determine satisfaction with a technical assistance contractor, or in-class evaluation forms completed by providers who receive training from HRSA grantees, to measure satisfaction with the training experience. Results of these surveys will be used to plan and redirect resources and efforts as needed to improve service. Focus groups may also be used to gain partner input into the design of mail and telephone surveys. Focus groups in-class evaluation forms, mail surveys, and telephone surveys are expected to be the preferred methodologies.

A generic approval will permit HRSA to conduct a limited number of partner surveys without a full-scale OMB review of each survey. If generic approval is granted, information on each individual partner survey will not be published in the Federal Register.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is hereby given of the following meeting.

The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.

The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.

The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: National Institute of Mental Health Special Emphasis Panel, SEP for NIMH PA R13: Support of Scientific Meetings.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.

The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: National Institute on Alcohol Abuse and Alcoholism Special Emphasis Panel, ZAAA1BB (02) R01 and R21 Application Review Meeting.

This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.

(Catalogue of Federal Domestic Assistance Program Nos. 93.271, Alcohol Research Career Development Awards for Scientists and Clinicians; 93.272, Alcohol National Research Awards for Research Training; 93.273, Alcohol Research Programs; 93.891, Alcohol Research Center Grants, National Institutes of Health, HHS)Dated: November 5, 2002.LaVerne Y. Stringfield,Director, Office of Federal Advisory Committee Policy.[FR Doc. 02-29017 Filed 11-14-02; 8:45 am]BILLING CODE 4140-01-MDEPARTMENT OF HEALTH AND HUMAN SERVICESNational Institutes of HealthNational Library of Medicine; Notice of Meeting

Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the PubMed Central National Advisory Committee.

The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.

Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.

In the interest of security, NIH has instituted stringent procedures for entrance into the building by non-government employees. Persons without a government I.D. will need to show a photo I.D. and sign-in at the security desk upon entering the building.

Information is also available on the Institute's/Center's home page: www.pubmedcentral.nih.gov/about/nac/html, where an agenda and any additional information for the meeting will be posted when available.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the f0llowing meetings.

The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which constitute a clearly unwarranted invasion of personal privacy.

Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Board of Governors of the Warren Grant Magnuson Clinical Center.

The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.

Name of Committee: Board of Governors of the Warren Grant Magnuson Clinical Center, Executive Committee.

This notice is being published less than 15 days prior to the meeting due to administrative error. Information is also available on the Institute's/Center's home page: www.cc.nih.gov/, where an agenda and any additional information for the meeting will be posted when available.

Pursuant to Executive Order 13263, notice is hereby given of a meeting of the President's New Freedom Commission on Mental Health in December 2002.

The meeting will be open and will consider how to accomplish the Commission's mandate to conduct a comprehensive study of the United States mental health service delivery system and to make recommendations on improving the delivery of public and private mental health services for adults and children. The Commission meeting will receive reports from several of its subcommittees, including Suicide Prevention, Criminal Justice, Co-Occurring Disorders and Evidence-Based Practices. There will also be panel presentations on several related topics.

Attendance by the public will be limited to space available. Public comments are welcome. Please communicate with the individual listed as contact below to make arrangements to comment or to request special accommodations for persons with disabilities.

Additional information and a roster of Commission members may be obtained either by accessing the Commission website, http://www.mentalhealthcommission.gov, or by communicating with the contact whose name and telephone number is listed below.

Committee Name: The President's New Freedom Commission on Mental Health.

Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.

ACTION:

Notice.

SUMMARY:

The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.

DATES:

Comments Due Date: January 14, 2003.

ADDRESSES:

Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Wayne Eddins, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street, SW., L'Enfant Plaza Building, Room 8003, Washington, DC 20410 or Wayne_Eddins@hud.gov.

FOR FURTHER INFORMATION CONTACT:

Beverly J. Miller, Director, Office of Asset Management, Department of Housing and Urban Development 451 7th Street, SW., Washington, DC 20410, telephone (202) 7008-3730 (this is not a toll free number) for copies of the proposed forms and other available information.

SUPPLEMENTARY INFORMATION:

The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended).

This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

This notice also lists the following information:

Title of Proposal: Request for Termination of Multifamily Mortgage Insurance.

OMB Control Number, if applicable: 2502-0416.

Description of the need for the information and proposed use: The information collection is used to notify HUD that the mortgagor and mortgagee mutually agree to terminate the HUD multifamily mortgage insurance.

Agency form numbers, if applicable: HUD-9807.

Estimation of the total numbers of hours needed to prepare the information collection including number of respondents, frequency of response, and hours of response: The total number of respondents is estimated to be 1,400 generating approximately 1,400 annual responses, the estimated time needed to prepare the response is .125 hours, and the total annual burden requested is 175 hours.

Status of the proposed information collection: Extension of a currently approved collection.

In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in National Coalition for the Homeless v. Veterans Administration, No. 88-2503-OG (D.D.C.).

Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.

Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Brian Rooney, Division of Property Management, Program Support Center, HHS, room 5B-41, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.

For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.

For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.

Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Mark Johnston at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the Federal Register, the landholding agency, and the property number.

The Public Advisory Committee was created by Paragraph V.A.4 of the Memorandum of Agreement and Consent Decree entered into by the United States of America and the State of Alaska on August 27, 1991, and approved by the United States District Court for the District of Alaska in settlement of United States of America v. State of Alaska, Civil Action No. A91-081 CV. The meeting agenda will feature a comprehensive briefing for new Public Advisory Committee members, discussions about the status of the Gulf of Alaska Ecosystem Monitoring and Research program, an update on lingering oil injury, and a review of the habitat protection program.

The Exxon Valdez Oil Spill Trustee Council is asking the public, private organizations, and government agencies to submit comments on the Draft Work Plan for Federal Fiscal Year 2003: Phase II, which implements the Gulf Ecosystem Monitoring and Research Program. The Draft Work Plan is available on the Internet site listed below. Paper copies of the Draft Work Plan are available upon request.

Following the Exxon Valdez oil spill in March 1989, a Trustee Council of three state and three federal trustees, including the Secretary of the Interior, was formed. The Trustee Council prepared a restoration plan for the injured resources and services within the oil spill area. The restoration plan called for annual work plans identifying projects to accomplish restoration. An extension of the Restoration Plan, the Gulf Ecosystem Monitoring and Research Program, also requires implementation through annual work plans. Each year proposals for restoration, monitoring, and research projects are solicited from a variety of organizations, including the public. Comments may be mailed to the above address, telephoned to the above telephone numbers (collect calls will be accepted from fishers and boaters who call through the marine operator), faxed to (907) 276-7178, or e-mailed to paula_banks@oilspill.state.ak.us. Public comment will also be accepted at the Trustee Council meeting, at 10:30 a.m. on Monday, November 25, 2002.

The County of Riverside (County), Riverside County Flood Control and Water Conservation District, Riverside County Transportation Commission, Riverside County Parks and Open Space District, Riverside County Waste Department, California Department of Transportation, California Department of Parks and Recreation, and 14 western Riverside County cities (Applicants) have applied to the U.S. Fish and Wildlife Service (Service) for an incidental take permit pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The Service is requesting public comment on the Draft Multiple Species Habitat Conservation Plan (MSHCP) and draft Implementing Agreement. The Applicants seek a permit to authorize incidental take of 146 species, including unlisted species that may become listed during the term of the permit. An incidental take permit is required to authorize take of listed species during urban and rural development in the approximately 1.26 million-acre (1,967 square-mile) Plan Area in western Riverside County. The proposed term of the permit is 75 years.

A Draft Environmental Impact Statement, which is the Federal portion of the Draft Environmental Impact Statement/Environmental Impact Report (EIS/EIR), has been prepared jointly by the Service and the County of Riverside to analyze the impacts of the MSHCP and is also available for public review. The analyses provided in the Draft EIS/EIR are intended to inform the public of our proposed action, alternatives, and associated impacts; address public comments received during the scoping period for the Draft EIS/EIR; disclose the direct, indirect, and cumulative environmental effects of the proposed action and each of the alternatives; and indicate any irreversible commitment of resources that would result from implementation of the proposed action.

Documents available for public review, includes the applications, the Public Review Draft MSHCP Volumes I (the proposed plan and mitigation) and II (the MSHCP reference document), and the accompanying Implementing Agreement, and the Draft EIS/EIR.

Individuals wishing copies of the documents should contact the Service by telephone at (760) 431-9440 or by letter to the Carlsbad Fish and Wildlife Office. Copies of the MSHCP, Draft EIS/EIR, and Draft Implementing Agreement also are available for public inspection, by appointment, during regular business hours, at the Carlsbad Fish and Wildlife Office (see ADDRESSES). Copies are also available for viewing at the Riverside County Administrative Center, 4080 Lemon Street, 7th Floor, Riverside, California; at public libraries in each of the applicant cities; and on the World Wide Web in the library section at http://www.rcip.org.

Background Information

Section 9 of the Act and Federal regulation prohibit the “take” of fish and wildlife species federally listed as endangered or threatened. Take of federally listed fish or wildlife is defined under the Act to include kill, harm, or harass. Harm includes significant habitat modification or degradation that actually kills or injures listed wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering (50 CFR 17.3(c)). Under limited circumstances, the Service may issue permits to authorize incidental take; i.e., take that is incidental to, and not the purpose of, otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species are found in 50 CFR 17.32 and 17.22, respectively.

The Applicants seek a permit to cover a total of 146 species, including 64 plant species (8 endangered, 3 threatened, and 53 unlisted); 3 crustacean species (1 endangered, 1 threatened and 1 unlisted); 2 insect species (both endangered); 2 fish species (1 threatened and 1 unlisted); 5 amphibian species (2 endangered, 1 threatened, and 2 unlisted); 12 reptile species (all unlisted); 45 bird species (2 endangered, 2 threatened, 1 proposed threatened, 1 candidate and 39 unlisted); and 14 mammal species (2 endangered and 12 unlisted). Collectively the 146 listed and unlisted species are referred to as “Covered Species” by the MSHCP. The permit would provide take authorization for covered animal species identified by the MSHCP as “Covered Species Adequately Conserved.” Currently, the Draft MSHCP identifies 128 species as “Covered Species Adequately Conserved.” The remaining species would be included as “Covered Species Adequately Conserved” upon completion of the conservation measures identified in the Draft MSHCP.

The MSHCP is intended to protect and sustain viable populations of native plant and animal species and their habitats in perpetuity through the creation of a preserve system, while accommodating continued economic development and quality of life for residents of western Riverside County. In the year 2020, the Southern California Association of Governments estimates that Riverside County will be home to approximately 2.8 million people, who will occupy approximately 918,000 dwelling units. This represents a doubling of the County's present population and housing stock. Another study by the California Department of Finance estimates that the County will continue to grow to 3.5 million people by 2030 and 4.5 million people by 2040. These residents will be located within 14 incorporated cities, as well as within numerous unincorporated areas.

The MSHCP is one part of the Riverside County Integrated Project (RCIP) intended to integrate and provide for future land use, transportation and conservation needs in Riverside County. The MSHCP plan area encompasses 1.2 million acres in western Riverside County and includes the following fourteen incorporated cities: Banning, Beaumont, Calimesa, Canyon Lake, Corona, Hemet, Lake Elsinore, Moreno Valley, Murietta, Norco, Perris, Riverside, San Jacinto, and Temecula. It is one of two large, multiple-jurisdictional habitat planning efforts in Riverside County, each of which constitutes a “subregional” plan under the State of California's Natural Community Conservation Planning (NCCP) Act of 1991.

As described in Volumes I and II of the Public Review Draft MSHCP and the Draft EIS/EIR, the proposed MSHCP would provide for the creation of a preserve system that protects and manages 153,000 acres of habitat for the Covered Species, consisting of 97,000 acres conserved as the local mitigation component, 6,000 acres conserved as mitigation for State Permittee Projects (California Department of Transportation and California Department of Parks and Recreation) and it is anticipated that the State and Federal Wildlife Agencies would provide an additional 50,000 acres to help achieve conservation identified in the MSHCP. The financing plan for the local portion of the reserve assembly of 97,000 acres includes a mitigation fee, tipping fee for use of waste management facilities, and other funding sources to conserve 56,000 acres. Conservation of the remaining 41,000 acres would accrue through the implementation of developer incentives and on-site set asides accomplished through the development review process. The proposed 153,000 acre reserve area is not specifically identified in the MSHCP. The conservation of 153,000 acres is anticipated to occur over the first 25 years of the program and when completed, must be in a configuration to, and include the vegetation communities that, provide for the conservation of covered species. To accomplish this, the proposed reserve will be assembled pursuant to written criteria that describe a possible design for the 153,000 acre reserve to be established within an approximately 300,000-acre area termed the “Criteria Area.”

Covered Activities would include, but are not limited to: public and private development within the plan area that requires a discretionary action by a permittee subject to consistency with MSHCP policies, two internal regional transportation facilities, maintenance of and safety improvements on existing roads, the Circulation Elements of the permittees, maintenance and construction of flood control facilities, single family homes on existing legal parcels within the Criteria Area, up to 10,000 new acres of agricultural activity within the Criteria Area, and compatible uses in the reserve. The MSHCP makes a provision for the inclusion of special districts and other non-permittee entities in the permit with a certificate of inclusion.

The EIS/EIR considers analyzes four other alternatives in addition to the proposed MSHCP Project Alternative described above including: A listed, proposed and strong candidate species alternative; A listed and proposed species alternative; an existing reserves alternative; and a no project alternative.

The listed, proposed and strong candidate species alternative focuses on the conservation of 29 State and/or federally listed species and 7 unlisted species. This alternative would conserve approximately 119,300 acres.

The listed and proposed species alternative focuses on the conservation of 29 State and/or federally listed or proposed species. This alternative is approximately 93,800 acres.

The existing reserves alternative does not provide any new land acquisition for conservation purposes, but instead focuses on conservation for six State and/or federally listed or candidate species and some unlisted species present in existing reserves. Species coverage would be dependent upon additional management regimes in the existing reserves.

Public Comments

The Service invites the public to comment on the Draft MSHCP, Draft Implementing Agreement, and Draft EIS/EIR during a 60-day public comment period beginning the date of this notice. All comments received, including names and addresses, will become part of the official administrative record and may be made available to the public. This notice is provided pursuant to section 10(a) of the Endangered Species Act and Service regulations for implementing the National Environmental Policy Act of 1969 (40 CFR 1506.6). The Service will evaluate the application, associated documents, and comments submitted thereon to prepare a Final Environmental Impact Statement. A permit decision will be made no sooner than 30 days after the publication of the Final Environmental Impact Statement and completion of the Record of Decision.

In compliance with the Paperwork Reduction Act of 1995, this notice announces that we are seeking comments from interested parties to renew the clearance for Application for Job Placement and Training Program, OMB No. 1076-0062.

For more information or copies of the forms, call Lynn Forcia at 202-219-5270 (This is not a toll-free number). You may send requests by facsimile to 202-208-3664.

SUPPLEMENTARY INFORMATION:

Public Law 84-959 and Public Law 88-230 authorize the Department of the Interior, Bureau of Indian Affairs (BIA) to help adult Indians who reside on or near Indian reservations to obtain reasonable and satisfactory employment. The information collection documents provide information necessary to administer the program for Job Placement and Training Program. The Department is authorized to undertake a program of vocational training and direct employment that provides vocational counseling, guidance, and training in any recognized vocation, apprenticeship, trade, or on-the-job training. The program is available to Indians who are primarily not less than 18 years old and not more than 35 years old who reside on or near an Indian reservation. The acts authorize the BIA to enter into contracts or agreements with Federal, State, local government agencies or associations with apprenticeship programs or on-the-job training that leads to skilled employment. The same application form is used for both 25 CFR parts 26 and 27. We are also proposing to combine 25 CFR parts 26 and 27 into one comprehensive Federal regulation combining vocational training and direct employment services. Information of a confidential nature is protected by the Privacy Act.

You are asked to comment on the necessity of the information collection to fulfill the functions of the bureau; whether the burden estimate is accurate and the methodology and assumptions are valid; the utility, quality, and clarity of information requested; and ways that the burden might be minimized for respondents. All comments are subject to review by the public during regular business hours (9 a.m. to 3 p.m.). If you wish your name or address withheld, you must state this prominently at the beginning of your comments. We will honor your request to the extent allowed by the law. Individuals who represent businesses, or companies will have comments available for review by the public. In some cases we may decide to withhold comments from review for good reason.

Please note that an agency may not sponsor or conduct, and a person need not respond to, an information collection unless a currently valid OMB Control Number is displayed.

This notice publishes the Mooretown Rancheria Alcoholic Beverage Control Law Amendment as set forth by Resolution 98-16. The Mooretown Rancheria Alcoholic Beverage Control Law was originally published in the Federal Register of February 11, 2000. This amendment increases the tax on sales of alcoholic beverages from 1 percent of the amount actually collected, including payments by major credit cards, to an amount equal to the current sales tax rate of the State of California. Further, the amendment exempts a tribal enterprise, the Feather Falls Mini Mart, from application of the sales tax. This is in conformity with the laws of the State of California, where applicable and necessary. Although the amendment was adopted on January 3, 2002, it does not become effective until published in the Federal Register, because the failure to comply with the ordinance may result in criminal charges.

Pursuant to the Act of August 15, 1953, Pub. L. 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in Rice v. Rehner,463 U.S. 713 (1983), the Secretary of the Interior shall certify and publish in the Federal Register notice of adopted liquor ordinances for the purpose of regulating liquor transactions in Indian country. The Mooretown Rancheria Alcoholic Beverage Control Law Amendment, Resolution No. 98-16, was duly adopted by the Tribal Council of the Mooretown Rancheria on January 3, 2002. The Mooretown Rancheria, in furtherance of its economic and social goals, has taken positive steps to regulate retail sales of alcohol and use revenues to combat alcohol abuse and its debilitating effects among individuals and family members within the Mooretown Rancheria.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.1.

I certify that by Resolution 98-16, the Mooretown Rancheria Alcoholic Beverage Control Law Amendment was duly adopted by the Mooretown Rancheria Tribal Council on January 3, 2002.

Section 701. Sales Tax. There is hereby levied and shall be collected a tax on each sales of alcoholic beverages on the Rancheria in the amount equal to the current sales tax rate of the State of California. The tax imposed by this section shall apply to all retail sales of liquor on the Rancheria (except at Feather Falls Mini Mart) and shall preempt any tax imposed on such liquor sales by the State of California.

Notice of intent to prepare an environmental impact statement for the Fire Management Plan for Carlsbad Caverns National Park.

SUMMARY:

Under the provisions of the National Environmental Policy Act of 1969, the National Park Service is preparing an environmental impact statement for the Fire Management Plan for Carlsbad Caverns National Park. This effort will result in a new wildland fire management plan that meets current policies, provides a framework for making fire-related decisions, and serves as an operational manual. Development of a new fire plan is compatible with the broader goals and objectives derived from the park purpose that governs resources management. Alternatives to be considered include: (1) No-action, (2) a fully integrated fire management plan with all strategies available for use, and (3) a plan allowing limited prescribed burning and not allowing lightning-started fires (wildland fire use). The no-action alternative maintains the current 1995 fire management plan strategy of suppression, wildland fire use, and prescribed burning. The proposed fully integrated plan alternative defines a relatively small fire management unit (FMU) surrounding the visitor center area, facilities, residences, and the area of the park adjacent to Whites City. This FMU applies full suppression and prescribed burning. The rest of the park comprises the second FMU, in which wildland fire use, prescribed fire, and suppression are management options. This second FMU specifies protection measures for special features, such as habitat of threatened and endangered species and sensitive cultural resources. The limited prescribed burning alternative does not allow wildland fire use. Conservative use of prescribed fire for fuels management or research is an option.

Major issues are environmental effects of the FMP that are potential problems. These include: protection of cultural resources, protection of plant and wildlife habitats, effects on non-native species, habitat protection for threatened and endangered species, protection of park neighbors' property, reducing impacts to park visitors, protection of life and property, effects on tourism, and changes in landscape-scale vegetation patterns.

A scoping brochure has been prepared describing the issues identified to date. Copies of the brochure may be obtained from Superintendent, Carlsbad Caverns National Park, 3225 National Parks Hwy., Carlsbad, New Mexico 88220.

DATES:

The scoping period will be 30 days from the date this notice is published in the Federal Register.

ADDRESSES:

Information will be available for public review and comment in the office of the Superintendent, Mary Gibson Scott, 3225 National Parks Highway, Carlsbad, NM 88220, (505) 785-2232 ext. 320.

If you wish to comment on the scoping brochure or on any other issues associated with the plan, you may submit your comments by any one of several methods. You may mail comments to Superintendent, Carlsbad Caverns National Park, 3225 National Parks Hwy., Carlsbad, New Mexico 88220. You may also comment via the Internet to CAVE_superintendent@nps.gov. Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: Carlsbad Fire Management Plan” and your name and return address in your Internet message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly at Resources Stewardship and Science at (505) 785-2232 x380. Finally, you may hand-deliver comments to the above address or at public meetings that will be held in Carlsbad and Queen, New Mexico. The schedule for these public meetings is included in the scoping brochure.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Notice is hereby given of proposed contractual actions that are new modified, discontinued, or completed since the last publication of this notice on August 5, 2002. The January 31, 2002, notice should be used as a reference point to identify changes. This notice is one of a variety of means used to inform the public about proposed contractual actions for capital recovery and management of project resources and facilities. Additional Bureau of Reclamation (Reclamation) announcements of individual contract actions may be published in the Federal Register and in newspapers of general circulation in the areas determined by Reclamation to be affected by the proposed action. Announcements may be in the form of news releases, legal notices, official letters, memorandums, or other forms of written material. Meetings, workshops, and/or hearings may also be used, as appropriate, to provide local publicity. The public participation procedures do not apply to proposed contracts for sale of surplus or interim irrigation water for a term of 1 year or less. Either of the contracting parties may invite the public to observe contract proceedings. All public participation procedures will be coordinated with those involved in complying with the National Environmental Policy Act.

ADDRESSES:

The identity of the approving officer and other information pertaining to a specific contract proposal may be obtained by calling or writing the appropriate regional office at the address and telephone number given for each region in the supplementary information.

Consistent with section 226 of the Reclamation Reform Act of 1982 (96 Stat. 1273) and 43 CFR 426.20 of the rules and regulations published in 52 FR 11954, April 13, 1987, Reclamation will publish notice of the proposed or amendatory contract actions for any contract for the delivery of project water for authorized uses in newspapers of general circulation in the affe